5 Mistakes to Avoid When Using the Reserved Symbol

George Raptis

• 12 July 2021
• 7 September 2021
• 5 min read

A great way to identify if a business name, logo or phrase is a trade mark is whether it bears the reserved symbol ‘®’ or not. However, there is no legal requirement that all registered trade marks must carry the reserved symbol, and even when the symbol is in use, there are some common mistakes trade mark owners can make. This article outlines five mistakes you should avoid when using the reserved symbol. 

1. Using ‘®’ Without Registering  

The reserved symbol notifies the general public that Australian trade mark law protects your name, logo or catchphrase. However, many trade mark owners are unaware that it is an offence to use the reserved symbol if IP Australia has not yet approved their trade mark for registration. This offence can attract a fine of up to $6600. To avoid this penalty, you should only use the reserved symbol once IP Australia has approved your trade mark. 

This is not to say that you cannot use the trade mark symbol ‘™’. In fact, many business owners actually use the ‘™’ symbol whilst their trade mark application is in the process of being reviewed and approved for registration by IP Australia. 

2. Difference Between ‘™’ & ‘®’  

Both registered and unregistered trade marks can use the ‘™’ symbol. However, only registered trade marks can carry the ‘®’ symbol.  As mentioned above, business owners who are in the process of having their trade mark application approved by IP Australia can use the ‘™’ symbol.

 In addition, the trade mark symbol typically protects unregistered trade marks, otherwise referred to as common law trade marks. These are trade marks that are not registered. However, the law will recognise and protect these marks due to them having gained a reputation. On the other hand, the reserved symbol only protects registered trade marks. 

3. Misunderstanding Protection 

Once you have placed the reserved symbol near your name or logo trade mark, typically in the top right-hand corner of the name or logo, it does not necessarily prevent others from misappropriating your mark. Rather, the symbol is there to notify the other person that a trade mark protects your name or logo. 

It is your responsibility as a trade mark owner to enforce your exclusive rights concerning your trade mark. This typically means that trade mark owners will scan the marketplace for any potential infringements on their trade mark. They will then enforce their rights where they discover trade mark infringement.

Trade mark infringement occurs when someone uses an identical or similar mark to your own trade mark concerning similar goods or services. For example, a shoe manufacturer operating under the name ‘Adedas’ would likely be infringing on the rights held by Adidas Group concerning their trade mark name ‘Adidas’. In the instance where trade mark infringement has occurred, the owner of the trade mark can enforce their exclusive rights by preventing the infringer from pursuing their infringing conduct. 

Using the reserved symbol will prevent infringers from claiming that they were not aware that your business name or logo was protected by a trade mark in the instance where they have committed trade mark infringement.

4. Using It for Other Goods or Services 

Since IP Australia registers trade marks in connection with certain classes of goods and services, you can only use the reserved symbol concerning the classes that IP Australia has approved. For example, if your business sells cleaning products and hardware materials, but you only registered your trade mark concerning classes containing cleaning products, you can only use the reserved symbol concerning those products. Using the reserved symbol connected with goods or services that you have not registered your trade mark under can attract a serious penalty. 

5. International Use 

If you have registered a trade mark overseas that you have not registered in Australia, you can use the reserved symbol. However, this is on the condition that you display the country or registration close to the ‘®’ symbol. Without displaying the country of registration, you may attract a penalty for using the reserved symbol without having registered your trade mark in Australia. 

Key Takeaways 

The reserved symbol notifies others that Australian trade mark law protects your business name, logo or catchphrase. You should only use the reserved symbol if IP Australia has approved your trade mark application for registration. Whilst IP Australia is in the process of reviewing your application, you can use the ‘™’ symbol. You must only use the reserved symbol connected with the goods and services that IP Australia has approved in your trade mark application. If you need help with your registered trade mark, our experienced trade mark lawyers can assist. Call us on 1300 657 423 or complete the form on this page. 

Frequently Asked Questions