You have settled on the brand name, the logo is close to final, and the quotes for packaging, signage and the website are coming in. Before any of that money moves, one check decides whether the brand can be protected at all: whether someone else already owns a trade mark that is the same as, or too close to, yours. That check is a search of Australia's trade mark register, and it is a step you can run yourself for free before you decide whether to file, adjust the brand or get professional advice.
When the search is done properly you will have a list of the closest marks on the register, with the classes, status, owners and dates that matter, and a realistic sense of the risk you would carry into an application. One thing the search will not give you is a guarantee. IP Australia runs its own examination of every application, and the register records registered and pending trade marks only, so a clear search does not capture every unregistered use of a name in the marketplace. What a good search does is surface the problems that are findable, so you can deal with them before you spend.
What to have ready before you search
Before you open the tool, gather five things:
- The brand elements you will protect: the word mark, the logo or device, or both. A word-only mark protects the name as text, while a device mark protects the specific image, and a combined brand needs both treated separately.
- A list of search variations: misspellings, phonetic equivalents, spacing and hyphenation changes, abbreviations, and numbers written out as words.
- The goods and services you will actually sell under the mark, and the classes they sit in: the register records each mark against numbered classes of goods and services, so every later comparison happens through them.
- A record-keeping system: a spreadsheet or document to log the close results as you go.
- Half an hour or more: a search that tests variations across your classes is not a five-minute exact-match check.
Two of these trip up most first-time searchers. The classes decision, because getting your own goods and services into the right class is where searches go wrong, and the variations list, because most conflicts come from similar marks rather than identical ones.
Running the search
Decide what you are searching for
Start by separating the elements of the brand. If the name is the asset, you are searching words and phrases. If the logo is the asset, you are searching images as well. If the brand is a name plus a device, you are doing both, because a combined mark can conflict in either element.
- Word elements: the brand name, tagline, product names and any distinctive phrases, plus every variation on your list.
- Device elements: the shape of the logo, the stylisation of the name and any symbols, which you will test with an image search.
Keep your intended goods and services in front of you throughout. The search will generate a lot of noise, and the only reliable way to filter it is by reference to what you actually plan to sell.
Open Australian Trade Mark Search and choose a search mode
The tool, still widely known by its old name ATMOSS, is now called Australian Trade Mark Search. It is the Australian Government's official trade mark search system, free to use, and it holds the details of registered and pending trade marks. You can search without an account; an online services account is only needed when you apply.
IP Australia describes two ways in:
- Quick search: accepts words, phrases, owner names, trade mark numbers and international registration numbers, and lets you upload an image for an image comparison search. This is the mode to start with.
- Advanced search: built for complex queries that combine fields, and best suited to people who search trade marks regularly.
If you want a fast first impression before the full search, IP Australia also offers TM Checker, a free AI-assisted check that gives feedback on how likely your proposed mark is to hit problems at examination. It is a useful screening step, not a substitute for searching the register itself.
Run the word searches, then the variations
Enter the exact brand name as a phrase first, then work through the variations on your list:
- Without the descriptive bits: search "SUNBURST" as well as "SUNBURST COFFEE".
- With different spacing and punctuation: "SUN BURST" and "SUN-BURST".
- Phonetically: how the name sounds in conversation, including obvious misspellings.
- Numbers both ways: "24/7" and "TWENTY FOUR SEVEN".
Searching only the exact name is the most common mistake in this whole process. The test in the Act compares marks by overall impression, not letter for letter, so a sound-alike can block you even when the spelling differs. If the logo matters, use the image search as well: upload the device and compare it against registered logos in your classes.
Filter by class and status
The results list will mix everything, so narrow it before you read. Filter by class to the goods and services you intend to cover, which removes most of the noise. Then look at status. The live entries, registered marks and pending applications, are the ones that can block you. Refused, removed and lapsed records are not live threats, although a refused mark is worth opening because it can tell you what an examiner found objectionable. You can also filter by lodgement date if you want to see recent filings in your space.
Open each close result and read the fields that matter
Click into the records that survive your filters. Five fields carry most of the risk information:
- Mark details: the word or device as registered, so you can compare overall impression.
- Classes and goods or services: the exact coverage, because the proximity of goods and services drives the conflict test.
- Status: whether the mark is registered, pending, opposed, refused or removed, and what that means for you.
- Owner: who holds it and whether they trade in your market.
- Priority date: the date that decides who wins between conflicting marks. Each mark carries a priority date, and under s 44 of the Trade Marks Act 1995 (Cth) (the Act) the earlier priority date prevails when two similar marks collide.
Also check whether the goods and services genuinely overlap with yours. The Act does not compare names in a vacuum. A mark conflicts with an earlier one only where it is substantially identical or deceptively similar and the goods or services are the same, similar, or closely related.
Weigh the risk against the tests in the Act
This is the step where a search becomes an assessment. Under s 44 of the Act, an application must be rejected if the mark is substantially identical with, or deceptively similar to, a mark registered by another person, or a mark whose registration is being sought, in respect of similar goods or closely related services, where the earlier mark has the earlier priority date. Section 10 defines deceptively similar: a mark that so nearly resembles another that it is likely to deceive or cause confusion. That is why phonetic matches and similar meanings matter as much as identical spelling.
There is also the reputation route. Under s 60, registration can be opposed where an earlier mark has acquired a reputation in Australia and your use would be likely to deceive or cause confusion, even across different goods and services. If a well-known player in your market owns something close, that reputation risk is real even when your classes differ. Examiners separately test distinctiveness: whether other traders might legitimately want to use the same words, which is why purely descriptive phrases are hard to protect.
Record the close results as you go: mark, number, classes, status, owner, priority date and a one-line risk note. The tool lets you save your search space and download a search report, which helps if you later brief a lawyer. If the search comes back clean, note the date you ran it, because the register changes constantly and your result has a shelf life.
Where people get held up
Most searches come unstuck in one of four ways:
- Searching only the exact name: most conflicts come from similar marks, so run the variations list or you will miss the ones that matter.
- Comparing in the wrong classes: a clear result in one class says nothing about another, and misclassifying your own goods sends the whole search off course. Check the classes similar businesses use.
- Ignoring pending applications: a mark does not need to be registered to block you. Section 44 catches marks whose registration is being sought, so an earlier pending application is a live risk.
- Reading a clear register as a clean bill of health: the register holds registered and pending marks only. Unregistered use in the market, and reputation built through use, are not on it at all, so a clear search is one input into the decision, not the whole answer.
When a trade marks lawyer or attorney earns their fee
The search IP Australia provides is a clearance tool, not a legal opinion. IP Australia itself notes that a brand launch can involve significant investment, and that an experienced trade marks attorney or lawyer can search for prior registered and unregistered marks and advise on how risks can be overcome or reduced. A practitioner adds value at four points:
- The full clearance search: attorneys search for unregistered and common law use as well as the register, and check the market rather than just the database.
- The risk opinion: reading the close results against s 44 and s 60, and telling you how a conflict is likely to play out, including the strength of the other side's position.
- The class and specification strategy: drafting the goods and services description is where applications succeed or fail, and fixing a poor specification after filing is expensive.
- The response work: an examination report or opposition is time-limited and technical, and a practitioner prepares the submissions and evidence and manages the deadlines. Between your own search and a full clearance, TM Headstart, IP Australia's pre-application assessment service, gives examiner feedback before you officially apply.
The same skills apply once the search is behind you. If you plan to trade overseas, rights are protected country by country, so a search of your target markets comes first. Australia's membership of the Madrid Protocol means an international registration can be filed through IP Australia and extended to other member countries, and a practitioner can map the timing. Once registered, a mark runs for 10 years and is renewable under s 77 of the Act, so the brand needs a renewal diary. Ownership, assignments and licences around the mark are also structuring decisions worth taking advice on while the brand is still young.
What decides whether the search does its job
The factor that decides whether your search actually protects you is the breadth of the combinations you test: every variation of the name across every class you are likely to trade in, plus the image search if a logo is involved. The examiner who later looks at your application will search at least that broadly, and the register moves constantly, so a search is only as good as the date it was run. If the result is clear, the next step is to file promptly, because the earlier priority date wins under s 44 and someone else can apply for the same mark tomorrow. IP Australia's own guidance puts the process from application to registration at at least seven months, with official fees from $250. If the result is not clear, the search has still done its job: it has given you the information you need to adjust the brand, narrow the classes or take advice before the money is spent.
A trade mark search in Australia starts with deciding what you are protecting, runs through word, phrase and image searches in the free Australian Trade Mark Search tool, filters the results by class and status, and finishes with an assessment of each close record against the tests in the Trade Marks Act. The register is free to search, but it is not the whole picture, and the closer the results, the more a trade marks attorney or lawyer earns their fee. Run the search, log the findings, and let the results decide whether you file as planned, refine the brand, or take advice first.