How do you trademark a brand in Australia?
This guide explains how trademarks work in Australia: what you can register, what it costs, how to enforce a mark, and the points where a trademark lawyer changes the outcome.
Written by: Mark Lazarus, trademark Lawyer, Director of Lazarus Legal
Published: 10Â June 2026
Last updated: 10Â June 2026
Legal Disclaimer: The information on this page is general in nature and is not intended to constitute legal advice. It does not take into account your personal circumstances. Laws and legal processes can change, and their application varies between cases. You should seek independent legal advice before acting on any information on this page.
Table Of Contents
Part 1: Understanding trademarks
- What is a trademark in Australia?
- Trademark vs copyright vs business name: what is actually different?
- What can you trademark in Australia?
- Is it a trademark or a patent?
- Trademark attorney or trademark lawyer: which one do you need?
Part 2: Registering a trademark
- How do you search if a trademark is already registered?
- How do you trademark a name in Australia?
- How do you trademark a logo in Australia?
- Which trademark class do you need to register under?
- How much does it cost to trademark in Australia?
- What makes a trademark legally enforceable?
Part 3: Protecting your trademark
- What is trademark infringement, and what do you do about it?
- How do you protect your Australian trademark overseas?
Part 4: Getting the right legal help
- What does a trademark lawyer do?
- When should you hire a trademark lawyer?
- How do you find a trademark lawyer in Sydney?
- Frequently asked questions
- Summary
What is a trademark in Australia?
A trademark is a sign that identifies your brand and distinguishes it from competitors. It is one form of intellectual property, registered with IP Australia, and it gives you exclusive commercial rights to the mark in the classes of goods or services you register.
Plain English definition
A trademark is what tells customers “this is from us, not them”. It is the legal lock around the name, logo or tagline you trade under. Once registered, no one else in your registered classes can use the same or a confusingly similar mark.
Legal definition
Under the Trade Marks Act 1995 (Cth), a trademark is a sign used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from those of any other person. Registration lasts ten years and can be renewed indefinitely.
Trademark vs copyright vs business name: what is actually different?
They are three separate systems with separate rights, and conflating them is the most expensive branding mistake Australian business owners make.
| Type | What It Protects | How You Get It | How Long It Lasts |
|---|---|---|---|
| Business Name | The right to trade under that name. | Register with ASIC. | 1 or 3 years, renewable. |
| Trademark | Exclusive commercial use of a brand identifier in your registered classes. | Register with IP Australia. | 10 years, renewable indefinitely. |
| Copyright | Original creative works: writing, art, code, music. | Automatic on creation. | Life of the author plus 70 years. |
Registering a business name or trade name with ASIC does not give you trademark rights. It only prevents an identical name from appearing on the ASIC register. Someone else can still register your trading name as their trademark, and once they do, they can stop you from using it.
Copyright is automatic but narrow. It protects creative expression (a logo as an artwork, your website copy), not brand identity. Two businesses can independently design similar logos, and each holds copyright in its own.
The cost of getting this wrong is real. Australian brand disputes, such as the long-running Katy Perry case, where a Sydney fashion designer and the global pop star both claimed rights to the name, and the Brisbane restaurant forced to rebrand after a larger operator enforced its registered mark, show that even established businesses can lose a name they never secured.
What can you trademark in Australia?
Almost any sign that uniquely identifies your brand can be registered:
- Words and slogans (brand names, taglines)
- Logos and designs
- Letters, numbers and combinations of them
- Shapes (3D marks, such as a product or container shape)
- Colours, where distinctively associated with your brand
- Sounds and scents
- Aspects of packaging or trade dress
The mark must be distinctive. Generic or purely descriptive marks (“Best Coffee Sydney”) usually fail at examination. The more uniquely the mark identifies you and only you, the stronger the protection.
Is it a trademark or a patent?
A trademark protects how your brand is identified. A patent protects how an invention works. If you sell something under a brand name, you need a trademark. If you have invented something genuinely new, you need a patent, and usually a trademark as well for the name you sell it under.
Patents are drafted and filed by a patent attorney, or a patent lawyer where disputes or commercial agreements are involved. Searches for “intellectual patent rights” conflate the two regimes: trademarks and patents are separate rights on separate registers, with different tests, costs and lifespans.
Trademark attorney or trademark lawyer: which one do you need?
Trademark attorney
Trademark attorneys (also written trade mark attorney, the spelling used in Australian legislation) are registered with the Trans-Tasman IP Attorneys Board. They specialise in registration: filing, responding to examination objections, and opposition proceedings before IP Australia.
Trademark lawyer
Trademark lawyers are admitted legal practitioners. They can do everything an attorney can, plus represent you in the Federal Court, draft commercial agreements involving your mark (licensing, assignments, brand sales), and advise where trademark issues intersect with contract, consumer or commercial law.
For a straightforward registration, either works. For enforcement, licensing, disputes, commercial structuring or international expansion, you want a trademark lawyer.
How do you search if a trademark is already registered?
IP Australia’s free ATMOSS database (Australian Trade Mark Online Search System) lets anyone search registered and pending trademarks before filing. An effective search covers:
- Exact matches
- Phonetically similar marks (“Kola” vs “Cola”)
- Visually similar logos
- Marks in your intended class and adjacent classes
- Company name availability and business name reservation records on the ASIC register
- Common law (unregistered) use of similar marks on Google and in your industry
A clean result does not guarantee approval, because examiners can find conflicts you missed. But filing without searching is gambling with your application fee.
How do you trademark a name in Australia?
Registering a trademark in Australia takes five steps and typically seven to nine months from filing to registration. If you have been searching for how to trademark a name, this is the process:
- Search: confirm the mark is available (Section 6)
- Pick your classes: define the goods or services you are covering (Section 9)
- File: Filing a trademark name with IP Australia is done online
- Examination: an examiner reviews the application and may raise objections
- Acceptance and registration: the mark is advertised for two months, and registered if no opposition is filed
Filing is the easy part. Surviving examination is not: over 30% of applications attract examiner objections, and responding to them effectively is where most self-filed applications fail. Once accepted, the registration of TM rights takes effect from the original filing date.
How do you trademark a logo in Australia?
A trademark logo application follows the same five steps as a name, with one strategic decision first: what exactly to file.
File the logo, the word mark, or both?
Most trademark lawyers recommend filing the logo and the word mark (wordmark) as separate applications. The logo registration protects the visual mark; the word mark protects the name in any styling. File only the combined logo and a competitor can use your name in different styling without infringing.
Is your logo distinctive enough?
A logo that is just the brand name in a stylised font may not earn separate logo protection. If the graphic element is not genuinely distinctive, the word mark alone is usually the better investment.
Which trademark class do you need to register under?
Australia uses the international Nice Classification system: 45 classes of goods and services. Your trademark only protects you in the classes you register. Common business classes include:
- Class 25: clothing, footwear, headgear
- Class 35: advertising, business management, retail services
- Class 41: education, training, entertainment
- Class 42: software development, scientific and technological services
- Class 43: restaurant and hospitality services
- Class 45: legal services
Choosing the wrong class is the single most common reason a registration fails to deliver the protection people thought they were buying. Multi-class strategy, covering the classes you operate in plus the adjacent classes a competitor would use, is where professional advice earns its fee.
How much does it cost to trademark in Australia?
IP Australia’s government fees start at $250 per class through the TM Headstart pre-application service, or $330 per class for a standard direct application. Fees change, so check IP Australia’s current schedule before filing.
Where trademarking costs actually accumulate:
- Multiple classes: each class is a separate fee
- Responding to examiner objections, which usually needs legal advice
- Defending an opposition, which can run to thousands if it reaches a hearing
- Re-filing a failed application: wasted fees plus the cost of doing it properly the second time
A smooth single-class DIY filing costs $330 to $500. A trademark lawyer handling the application and any objections typically costs $1,500 to $3,500, which buys prevention of the expensive failure modes above.
What makes a trademark legally enforceable?
Registration gives you the exclusive right to the mark in your registered classes, but the strength of that right depends on four things:
- Distinctiveness: generic or descriptive marks are weak even when registered, and can be vulnerable to invalidation
- Continued use: three or more years of non-use exposes the mark to a removal application by a competitor
- Active enforcement: failing to act against infringers erodes your rights over time
- Class accuracy: protection stops at the boundary of the classes you registered
Unregistered marks have only limited protection in Australia: common law passing off, and misleading conduct claims under the Australian Consumer Law. Both are significantly harder to prove than infringement of a registered mark.
What is trademark infringement, and what do you do about it?
Trademark infringement is the use of a mark that is identical or deceptively similar to your registered mark, on goods or services in the same or a closely related class. The standard enforcement pathway:
- Document the infringement: screenshots, purchase evidence, dates
- Send a formal cease and desist letter
- Negotiate: most disputes settle at this stage
- If unresolved, seek an injunction and damages in the Federal Court
A cease and desist from a trademark lawyer carries more weight than a self-drafted letter, because the recipient knows the sender can escalate to court. That perception alone resolves most infringements.
How do you protect your Australian trademark overseas?
An Australian registration protects you in Australia only. International protection comes one of two ways:
Country-by-country filing
Separate applications in each jurisdiction. Most thorough and most expensive. Best where you need a small number of specific markets, or a country outside the Madrid system.
The Madrid Protocol
A single international application filed through IP Australia covering up to 130 member countries. Cheaper for broad coverage, but each designated country applies its own examination rules, and major jurisdictions such as the US and China have local requirements that catch out applicants who treat Madrid as one-size-fits-all.
What does a trademark lawyer do?
Engaging a lawyer for trademark work covers the full life of a mark, from clearance through registration to enforcement and commercial use:
- Pre-filing clearance searches and risk assessment
- Class selection matched to your actual commercial activity
- Filing the application correctly the first time
- Responding to examiner objections
- Running or defending opposition proceedings
- Cease and desist letters, sent and answered
- Infringement, validity and removal proceedings in the Federal Court
- Trademark licences, assignments and IP clauses in commercial contracts
- International filing strategy, including Madrid Protocol applications
When should you hire a trademark lawyer?
Engage a trademark lawyer when any of these apply:
- Your brand is genuinely commercial: you are investing in growth or marketing
- Your class is crowded with existing registrations
- Your search returned similar marks, and you cannot tell whether they conflict
- IP Australia has raised an examination objection
- You are facing infringement in either direction
- You are licensing the brand to franchisees, distributors or partners
- You are expanding internationally
- The mark forms part of a sale, acquisition or investment
For a hobby project with no commercial value at stake, DIY is defensible. For anything you would mind losing, the triggers above are where professional advice changes the outcome.
How do you find a trademark lawyer in Sydney?
Trademark lawyers Sydney businesses trust tend to share five traits. Whether you brief us or anyone else, look for:
- Specific trademark experience, not just general commercial work
- Familiarity with your industry’s trademark landscape
- Federal Court capability, if a dispute is live or likely
- Clear, predictable pricing
- Responsive communication, because trademark deadlines are hard deadlines
- Reach beyond one city: IP lawyers Australia-wide can act on Federal trademark matters regardless of state
Need broader IP help, or a patent professional instead?
If you are searching specifically for a trademark lawyer Sydney businesses rely on, or an intellectual property lawyer Sydney firms brief for broader IP work, that is the page to read next. For an invention rather than a brand you are looking for a patent attorney Sydney-side instead; patent attorneys and patent lawyers Sydney-wide sit on a separate professional register, and we can refer you for patents.
Frequently asked questions
Can I trademark my own name in Australia?
Yes, if it is used as a brand identifier. Personal names can be registered but must still meet the distinctiveness test under the Trade Marks Act.
How long does it take to register a trademark in Australia?
Typically seven to nine months from filing to registration with no objections or opposition. With examiner objections, expect nine to twelve months or longer.
What happens if I do not renew my trademark?
It lapses at the end of its ten-year term. After a grace period, anyone can apply to register it themselves.
Can I use the TM symbol without registering?
Yes. TM can be used on any mark you claim, registered or not. The R-in-a-circle symbol is restricted to registered marks, and using it on an unregistered mark is an offence.
Can I sell or license my trademark?
Yes. A registered trademark is property: it can be assigned, licensed to franchisees or distributors, and used as security. Assignments should be recorded with IP Australia.
What is TM Headstart?
IP Australia’s pre-application service. An examiner reviews your proposed mark before formal filing and flags likely problems while they are still fixable.
How do I patent an idea in Australia?
Patents are filed with IP Australia, usually through a patent attorney, and protect how an invention works rather than the brand it is sold under. If your question is really about protecting a name or logo, you need a trademark, not a patent.
Can I trademark a hashtag or domain name?
Yes, if it functions as a brand identifier and meets the distinctiveness test. The hash symbol or domain extension itself adds nothing distinctive.
What does it mean if my application is opposed?
After acceptance, the application is advertised for two months, during which any third party can oppose it, usually claiming a conflict with their mark. Oppositions are contested proceedings before IP Australia, and most applicants engage a lawyer at this point.
Can two businesses own the same trademark?
Yes, in different classes. The same word can be registered by different owners for unrelated goods or services, which is why class strategy matters.
Principal Solicitor, Director, Lazarus Legal
Mark Lazarus is the Director of Lazarus Legal, the Sydney commercial firm established in 1975. He is a trademark and intellectual property lawyer with more than 20 years of experience across private practice, the NSW Bar, and senior in-house roles, including six years as Legal Counsel and then Legal Director EMEA at Monster Energy in London, where trademark enforcement sat at the centre of the brand's global protection strategy.
Page Published: 10 June 2026