If you are unsure whether your business name, logo or brand is properly protected, a trademark lawyer can help you understand the legal issues before you commit to an application.
Registering a business name does not give you trademark rights. Business name registration and registered trademark rights are different, and the right approach depends on the brand you want to protect, how you use it and what your business plans to do next.
This guide explains how a trademark lawyer can assist Australian businesses, how a lawyer differs from a registered trade marks attorney, and what information can help when you are considering a trademark application or reviewing an existing brand.
Key Takeaways
- A business name registration does not give you registered trademark rights.
- A trademark lawyer can advise on the legal issues connected with your brand and wider business arrangements.
- A lawyer and a registered trade marks attorney have different professional qualifications, although some practitioners may hold both.
- Before seeking advice, gather the proposed trademark, details of how it is used and the goods or services connected with it.
- Rise Legal assists Australian businesses with trademark and intellectual property matters on a fixed-fee basis.
Table of Contents
- What Can a Trademark Lawyer Help With?
- Does Registering a Business Name Protect Your Brand?
- Trademark Lawyer or Registered Trade Marks Attorney?
- How to Prepare for Trademark Advice
- How Rise Legal Helps with Trademark Matters
- Frequently Asked Questions
What Can a Trademark Lawyer Help an Australian Business With?
A trademark lawyer can help a business owner consider the legal questions surrounding a proposed or existing brand, how the brand is being used and how it fits into the business’s wider plans.
That may include considering a business name, product name, logo, slogan or other brand element and how it relates to the goods or services offered under that brand.
The question is not always simply, “Can I register this trademark?” It can also be useful to consider whether the proposed trademark and the scope of protection fit the way the business intends to use the brand now and in the future.
Legal advice does not guarantee that a trademark application will be accepted or registered. The outcome depends on the particular trademark, the goods or services involved and the circumstances of the application.
When Might a Business Seek Trademark Advice?
A business may seek trademark advice when:
- launching a new business or brand;
- introducing a new product or service;
- developing a new logo or slogan;
- expanding into new product or service categories;
- reviewing trademarks already used by the business;
- buying or selling a business;
- licensing a brand to another party; or
- considering how intellectual property should be dealt with in a commercial agreement.
Useful information can include what the trademark looks like, how it is currently used and the goods or services the business plans to provide under it.
If the branding is still being developed, it can also help to identify the different versions being considered and which version the business is most likely to use.
Does Registering a Business Name Protect Your Brand?
No. Registering a business name with ASIC does not, by itself, give you proprietary trademark rights in that name.
Business name registration and trademark registration serve different purposes.
A business name registration allows a business to operate under a particular name, subject to the applicable registration requirements. It does not necessarily prevent another business from using the same or a similar name.
A registered trademark can provide legal rights in the trademark in connection with the particular goods or services covered by the registration.
This is why registering a business name should not automatically be treated as equivalent to protecting the name as a trademark.
Rise Legal assists Australian businesses with trademark and intellectual property matters, including trademark applications and related commercial legal issues.
Trademark Lawyer or Registered Trade Marks Attorney: What Is the Difference?
A trademark lawyer and a registered trade marks attorney have different professional qualifications, although some professionals may hold both.
A lawyer is admitted to practise law and can advise on legal rights and broader commercial legal matters.
A registered trade marks attorney is a specialist registered under the Trans-Tasman IP Attorneys framework and can provide specialist trademark services.
The appropriate adviser can depend on the work you need.
What Does a Registered Trade Marks Attorney Do?
A registered trade marks attorney can assist with trademark matters including preparing and filing applications and dealing with IP Australia during the application process.
Their specialist focus may be particularly relevant where the main issue concerns the preparation, filing or prosecution of a trademark application.
You can also review information about Australian trademark applications directly through IP Australia.
When Might a Trademark Lawyer Be Appropriate?
A trademark lawyer may be useful where the trademark issue connects with broader legal or commercial matters.
For example, this might include:
- ownership of intellectual property;
- business sale or purchase arrangements;
- licensing arrangements;
- shareholder or partnership arrangements;
- commercial contracts;
- franchise arrangements; or
- how a trademark fits into the wider structure of the business.
The roles can overlap, so the better starting point is often to consider the work you need rather than relying only on a professional title.
How to Prepare for a Trademark Lawyer Conversation
You do not need to have every detail settled before seeking advice. However, some preparation can make the discussion more useful.
Start with the decision you are trying to make. For example, you might be considering whether to apply for a new trademark, deciding which version of a brand to use or reviewing an existing portfolio of names and logos.
Information That Can Help
Gather any information you already have about the proposed or existing trademark.
- The brand: the proposed name, logo, slogan or other trademark, including different versions where relevant.
- Your business activity: what your business currently sells or provides and what you plan to offer under the trademark.
- Current use: examples of the trademark on websites, packaging, signage, marketing material or other business assets.
- Future plans: new products, services, locations or markets you intend to introduce.
- Existing applications or registrations: details of any trademarks already applied for or registered.
- Relevant deadlines: correspondence or dates connected with an existing application or IP Australia matter.
It can also help to write down your main concern and the next commercial step you are considering.
For example, are you preparing to launch a product, expand an existing range, licence your brand or buy another business?
That context can help define the legal work required.
Understanding Scope and Fees
Before proceeding, check what the proposed legal fee covers and what may fall outside the agreed scope.
Rise Legal provides fixed-fee proposals for defined trademark and intellectual property work, so you can understand the proposed scope and professional fee before proceeding.
Separate third-party or government charges, including IP Australia application fees, may also apply depending on the work involved.
How Rise Legal Helps Australian Businesses With Trademark Matters
Trademark issues often connect with wider decisions about how a business develops, owns and uses its intellectual property.
Rise Legal assists Australian businesses with trademark and intellectual property matters, including trademark registration and related commercial legal issues.
Our advice can consider the business context surrounding the trademark rather than treating the application as an isolated administrative process.
This may be relevant where a trademark forms part of:
- a business sale or purchase;
- a franchise system;
- a shareholder or partnership arrangement;
- a licence;
- a contractor or services agreement;
- a new product or service launch; or
- another commercial arrangement involving intellectual property.
You can learn more about our trademark and intellectual property services.
When Trademark Issues Connect With Other Intellectual Property
A trademark may be only one part of a business’s intellectual property.
A business may also use copyright material, confidential information, designs, domain names, customer-facing content or other assets that raise separate legal considerations.
Commercial agreements may also determine who owns intellectual property, who can use it and what happens to those rights when a business relationship ends.
Providing this wider context can help identify which legal issues need to be considered alongside the trademark itself.
Take the Next Step With Your Brand
If you are considering a trademark application or reviewing how your existing trademarks fit into your business, start by identifying the brand, how it is being used and what you want the business to do next.
You do not need to have every question resolved before seeking legal advice.
To discuss your trademark needs or request a fixed-fee proposal, contact Rise Legal.
Frequently Asked Questions
What Does a Trademark Lawyer Do in Australia?
A trademark lawyer can advise on legal issues connected with a business name, logo, slogan or other brand element and how those rights fit into wider commercial arrangements.
The particular work depends on the agreed scope and the circumstances of the business.
Is a Trademark Lawyer the Same as a Registered Trade Marks Attorney?
No. They are different professional qualifications, although one person may hold both.
A lawyer is admitted to practise law. A registered trade marks attorney is registered under the specialist Australian and New Zealand intellectual property attorney framework.
Can a Lawyer Help Before I Apply for a Trademark?
Yes. Legal advice can be obtained before an application is filed.
This may be useful where you are still deciding which brand to use, what goods or services will sit under the trademark or how the trademark will fit into your wider business arrangements.
Does Registering a Business Name Give Me Trademark Rights?
No. ASIC business name registration does not, by itself, give you proprietary trademark rights in the name.
Trademark registration is a separate process dealing with legal rights in a trademark for particular goods or services.
Can Rise Legal Register a Trademark for My Business?
Yes. Rise Legal assists Australian businesses with trademark registration and related intellectual property matters.
The work and costs depend on the particular trademark, the classes of goods or services involved and the agreed scope.
How Much Does a Trademark Lawyer Cost?
The cost depends on the work involved.
Rise Legal provides fixed-fee proposals for defined trademark work so you can understand the professional fee and scope before proceeding. Government charges, including IP Australia fees, may apply separately.
Article by
Helen Kay, Principal Lawyer, Rise Legal
Helen Kay is the Managing Director and Principal Lawyer at Rise Legal, an Australian commercial and business law firm advising business owners, franchisors and franchisees across Australia. Helen practises in commercial law, franchising, business contracts, business sales and purchases, trademarks and related business law matters.
Disclaimer
This article provides general information only and does not constitute legal advice. It does not take into account your specific circumstances. Laws and regulatory requirements may change, so you should obtain legal advice relevant to your situation before acting on the information contained in this article. Liability limited by a scheme approved under professional standards legislation.
