What can be trade marked?

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A question we often get asked by our clients is what can be trade marked?

It is a very valid question as there is often a lot of confusion around what can be subject to a trade mark.

So, lets look at what can be trade marked and what cannot.

What can you trade mark?

IP Australia is an agency of the Department of Industry, Innovation and Science and administers intellectual property rights and legislation relating to trade marks.

On IP Australia’s website, it states your trade mark, often called a brand, is your identity and shows your customers who you are.

It can be:

  • your corporate logo
  • a jingle you use in an advertisement
  • your business name painted on the side of your truck or your signage or packaging
  • a word (in a plain font or a ‘fancy’ font)
  • a phrase
  • a letter
  • a number
  • a logo
  • a picture
  • as aspect of packaging; or
  • any combination of the above

Some example of what could be described as non-traditional trade marks which requires special consideration when applying and if presented correctly can be registered are:

  • Smell trade marks
  • Colour trade marks
  • Sound trade marks
  • Shape trade marks

What can’t you trade mark?

A common misconception is that a trade mark is the same thing as a business name, company name or domain name. It is not.

Business and company names are registered through the Australian Securities and Investments Commission (ASIC).

Domain names are issued by private internet companies to secure the web URL only and registered by the .au Domain Administration.

We are often asked about a design. A design refers specifically to the new visual features of shape, configuration, pattern, or ornamentation of a product.

It is important to note that some marks are very hard to register such as descriptive words. By way of an example, you could not register the word ‘chair’ in relation to chairs because it is too descriptive.

Also, some marks are protected under other legislation such as the ‘Red Cross’ emblem.

How can we help?

At FC Lawyers we have over 25 years’ experience assisting our clients with registering and protecting their trade marks. 

Contact our friendly and expert team for an obligation free quote and to discuss your intellectual property needs.

The information provided in this article is for general information and educative purposes in summary form on legal topics which is current at the time it is published. The content does not constitute legal advice or recommendations and should not be relied upon as such. Whilst every care has been taken in the preparation of this article, FC Lawyers cannot accept responsibility for any errors, including those caused by negligence, in the material. We make no representations, statements or warranties about the accuracy or completeness of the information and you should not rely on it. You are advised to make your own independent inquiries regarding the accuracy of any information provided on this website. FC Lawyers does not guarantee, and accepts no legal responsibility whatsoever arising from or in connection to the accuracy, reliability, currency, correctness or completeness of any material contained in this article. Links to third party websites or articles does not constitute any endorsement or approval of those sites or the owners of those sites. Nothing in this article should be construed as granting any licence or right for you to use that content. You should consult the third party’s terms and conditions of use in relation to any third-party content. FC Lawyers disclaims all responsibility and all liability (including liability for negligence) for all expenses, losses, damages and costs you might incur as a result of the information being inaccurate or incomplete in any way. Appropriate legal advice should always be obtained in actual situations.


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