What Is The Difference Between A Registered And An Unregistered Trademark

A registered trade mark is registered with IP Australia and is displayed on IP Australia’s public register. The process to register a trade mark is to first apply for the trade mark with IP Australia, where it undergoes a check and examination process by IP Australia. If the trade mark is successful, the owner will have trade mark protection for ten years in Australia, where it can then be renewed. However, if a registered trade mark is not used, it can be removed.

If someone infringes a registered trade mark (uses a mark that is too similar or the same as a registered trade mark), the owner of the registered trade mark has the right to take legal action, as they have the exclusive right to use, licence or sell the trade mark.

An unregistered trade mark is one that is not registered with IP Australia. In Australia, an unregistered trade mark may still be recognised and protected, although it is much more complicated to prove that an unregistered trade mark should be legally protected in the same way that a registered trade mark is. For an unregistered trade mark to be recognised, it must have a history of use. Other evidence will look at business proceeds, external evidence of awareness of the trade mark’s reputation, and how the trade mark has been used in the past.

Legal protections for unregistered trade marks can be found in section 120 of the Trademarks Act for well known trade marks, Schedule 2 of the Competition and Consumer Act, and under the tort of passing off.

In summary, it is much more straightforward for owners of a registered trade mark to enforce a trade mark rights than it is for the owner of an unregistered trade mark. Either way, it is illegal to use another owner’s trade mark, whether that trade mark is registered or not, as your own.