You see it everywhere — that little ® sitting next to brand names, logos, and product names. Most people assume it’s just a way of signalling “this is our brand.” But in Australia, the ® symbol has a specific legal meaning, and using it incorrectly can land you in trouble.
What does the ® symbol mean?
The ® symbol indicates that a trade mark is registered. Not pending, not applied for — registered. In Australia, that means the mark has been examined by IP Australia, accepted, published for opposition, and formally entered on the Register of Trade Marks.
Using the symbol is a way of putting the world on notice that you have a registered trade mark and the legal rights that come with it.
When can you use it?
You can use the ® symbol once your trade mark has been officially registered in Australia. You can use it in connection with the goods and services covered by your registration — but only those goods and services. If your mark is registered for clothing but not for food products, you shouldn’t use the ® symbol when marketing food under that brand.
When you can’t use it
Under section 151 of the Trade Marks Act 1995, it is an offence to represent that a trade mark is registered when it is not. This means you cannot use the ® symbol if:
- Your trade mark application is still pending (not yet registered)
- Your registration has lapsed or been cancelled
- You’re using the mark in connection with goods or services not covered by the registration
- The mark you’re using is materially different from the mark as registered
The penalty for false representation of a registered trade mark can include fines. More practically, it can also undermine your credibility in any future enforcement action.
What about the TM symbol?
The TM symbol (™) has no legal status in Australia. Anyone can use it at any time, whether or not they have a registered trade mark. It’s simply a way of indicating that you consider something to be your trade mark — a claim of common law rights, if you like.
Many businesses use ™ while their trade mark application is pending, then switch to ® once registration is granted. That’s perfectly fine and quite common practice.
Practical tips
If you have a registered trade mark, using the ® symbol is good practice. It puts competitors and potential infringers on notice, and it can strengthen your position if you ever need to enforce your rights.
Just make sure you’re using it correctly — only with the registered mark, only for the registered goods and services, and only while the registration remains in force.