A logo trade mark is a sign that distinguishes your goods or services from everyone else's. In Australia, that sign can be your logo as a graphic on its own, the logo combined with your business name, or even a distinctive shape, colour or piece of packaging. Registering it with IP Australia gives you the exclusive right to use it for the goods and services you nominate, and the right to take action if someone else trades on it.
This guide explains what the law treats as a logo trade mark, the requirements a logo must meet before IP Australia will register it, and the misunderstandings that cost business owners the most.
What the law counts as a "logo"
The starting point is the definition in s 17 of the Trade Marks Act 1995 (Cth) (the Trade Marks Act): a trade mark is a sign used, or intended to be used, to distinguish your goods or services dealt with in the course of trade from those of anyone else. The word "sign" is defined very broadly in s 6 of the Act. It includes any letter, word, name, signature, numeral, device, brand, heading, label, ticket, aspect of packaging, shape, colour, sound or scent, and any combination of them.
A logo is a "device" in the language of the Act. In trade mark practice a device means the graphic or pictorial element of a brand: an abstract symbol, an emblem, an illustrated character, a monogram, or a badge. What you register can be the device by itself, the words of your business name by themselves (a word mark), or the two locked together (a combination mark, sometimes called a composite mark). IP Australia's own guidance describes trade marks in these everyday terms: words, shapes, images, colours, moving images, aspects of packaging, and combinations of any of these.
The critical point is that the logo, whatever form it takes, has one job: it must distinguish your goods or services from those of other traders. That single idea drives everything else in this article.
The requirements a logo must meet
A logo does not get registered just because you paid a designer for it. The Trade Marks Act sets out three hurdles, and an application must be rejected if the logo cannot clear them.
The logo must be capable of being represented graphically
Under s 40 of the Trade Marks Act, an application must be rejected if the trade mark cannot be represented graphically. In practice this is rarely a problem for a logo: you file an image of it. But it explains why the registration system is built around a fixed representation of your logo. What IP Australia registers is that particular picture, so any future dispute about whether a rival's mark is too close will be decided by comparing it with the image on the register.
The logo must be capable of distinguishing your goods or services
Under s 41 of the Trade Marks Act, an application must be rejected if the trade mark is not capable of distinguishing your goods or services from those of other persons. This is the distinctiveness test, and it is where most logo applications fail.
A logo fails the test when it is not, to any extent, inherently adapted to distinguish your goods or services. In plain terms, the question is whether other traders in your industry could legitimately want to use the same thing. A plain picture of a coffee cup for a café, a generic wrench for a tools business, or the words "Sydney Coffee Beans" in an ordinary font are all things other traders would reasonably want to use, so on their own they are not distinctive enough. That is why stylisation matters so much for logos: the more original the arrangement of shapes, lettering and negative space, the more the logo points to your business rather than to the industry in general.
Importantly, s 41 contains an escape hatch. Even if a logo is not inherently distinctive, it can still be registered if you used it before the filing date to such an extent that it does in fact distinguish your goods or services. This is known as acquired distinctiveness, and it is proved with evidence of use: sales figures, advertising spend, customer numbers and the like.
The logo must not clash with earlier marks
Under s 44 of the Trade Marks Act, an application must be rejected if your logo is substantially identical with, or deceptively similar to, an earlier trade mark registered in respect of similar goods or closely related services. Two marks are deceptively similar if they so nearly resemble each other that they are likely to deceive or cause confusion (s 10).
This is why the search you do before filing matters. IP Australia will not necessarily tell you about a conflicting mark you missed; it will simply object when it finds one. A clearance search of the register for identical and similar logos in your nominated classes, before you commit money to signage, packaging and printing, is the cheapest way to avoid designing a logo you cannot register.
Two further rejection grounds are worth knowing. Under s 42, an application must be rejected if the logo contains or consists of scandalous matter, or if its use would be contrary to law. Using an element that breaches someone's copyright, such as a stock illustration you have no licence to adapt or a character that mimics a famous one, can trigger this ground, because using the logo would itself be unlawful. And under s 40's close cousin, the mark must simply be a sign at all: a purely functional shape with no brand element, for example, does not fit the definition.
What registration actually gives you
If your logo clears those hurdles and is registered, s 20 of the Trade Marks Act gives you the exclusive rights to use the trade mark, and to authorise other people to use it, in relation to the goods and services for which it is registered. It also gives you the right to obtain relief if the trade mark is infringed. That means a registered logo is enforceable: you can stop others from using a substantially identical or deceptively similar logo on the goods and services your registration covers, which is something an unregistered logo gives you only through the slower, more expensive route of passing off or misleading conduct claims.
The rights attach to the goods and services you nominate in your application, not to your whole business. If you register the logo for dog collars but not for dog food, your protection does not extend to the food. Picking the right classes is therefore part of the registrability question, not an afterthought.
Registration lasts 10 years from the filing date (s 72 of the Trade Marks Act) and can be renewed for further 10-year periods (s 77), so in theory a logo trade mark can last as long as your business does, provided you keep renewing and keep using it.
A worked example: Brindle and Co
Brindle and Co is a Melbourne business that makes handmade leather dog collars. Its logo is a stylised dog head drawn in geometric line art, in a brindle pattern, sitting above the words "BRINDLE & CO" in a custom serif typeface. The owner wants to protect it before the brand takes off.
The owner's trade marks lawyer explains that the words "brindle" describe a common dog coat pattern, so a plain word mark "BRINDLE" would struggle under s 41: other dog-product traders could legitimately want to describe their collars that way. But the logo as a whole is a different matter. The geometric dog-head device is original, it is not something other collar makers would need to use, and combined with the custom typeface it is inherently adapted to distinguish Brindle and Co's collars from everyone else's. The combination mark should clear the distinctiveness hurdle.
The lawyer runs a clearance search and finds an earlier registered logo of a terrier's head for pet accessories in the same class. The terrier is drawn realistically; the Brindle and Co device is angular and abstract. The lawyer's view is that the two are not deceptively similar, because the overall impression a customer would carry away is quite different, so the s 44 objection should not arise.
They file two applications: one for the combination logo (device plus word) and one for the dog-head device on its own. The owner wants to use the head alone on collar tags and social media avatars, and a device-only registration protects that use separately. Both marks are registered. When a competitor later launches a collar range with a very similar angular dog-head mark, Brindle and Co is in a position to enforce its registration quickly, rather than trying to prove a passing-off case from scratch.
Misconceptions that cost business owners
Four misconceptions in particular cost business owners far more than they should:
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Business name registration is not trade mark protection: registering a business name with ASIC only tells the public who is behind a trading name. It gives you no exclusive right to a logo, and it is not a trade mark at all.
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A word registration does not cover your logo: if you register only the words "Brindle & Co" in plain type, a competitor can use a very similar graphic device, because the word mark protects the name and not the picture. Conversely, registering only the device leaves the name itself unprotected. Many businesses file both, or file a combination mark plus the device alone, to cover the ways the brand is actually used.
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Filing in black and white does not lock you into monochrome: IP Australia's practice, and the way s 20 rights are applied, gives broad protection across colour variations as long as the overall impression of the mark stays the same. Claiming a specific colour is usually a tactical choice for marks where colour itself carries the distinctiveness, such as a signature two-tone gradient, rather than a requirement.
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A logo does not have to be a completely invented picture: ordinary elements arranged in an original way can be perfectly registrable, and a partly descriptive word can be rescued by a distinctive device, exactly as in the Brindle and Co example. What matters is the overall impression and whether other traders would need to use the same thing.
Where a trade marks lawyer helps
Distinctiveness and conflict are judgement calls, and they are the two places logo applications fail. A trade marks lawyer or registered trade marks attorney runs the clearance search properly, including phonetically similar names and lookalike devices, and gives a realistic opinion on whether your logo clears s 41 and s 44 before you spend the filing fee. After filing, a lawyer drafts the response to an examiner's objection, which in many cases can be overcome with evidence of use or a careful amendment to the specification of goods and services.
The practical value shows up in the details. Filing through IP Australia's pre-application service, TM Headstart, gives an early, indicative assessment of whether your logo is registrable before you commit to a full application, and a lawyer can help you read that feedback correctly. A lawyer also handles the ownership side that designers rarely think about: making sure the copyright in the logo is assigned in writing from the designer to the business, so the business actually owns the asset it is registering, and structuring licensing arrangements if franchisees, distributors or partners will use the logo.
The question to ask about your own logo
Before you file, ask the one question the Trade Marks Act will ask of your logo: would another trader in your industry legitimately want to use this? If the answer is yes, because your logo is a plain industry symbol or a descriptive phrase in an ordinary font, no amount of polish will fix it without either original design or a track record of use to prove acquired distinctiveness. If the answer is no, because the arrangement of shapes and lettering is genuinely yours, you have a logo that can distinguish your business, and registration is a realistic and enforceable step. Answering that question honestly, with a clearance search behind it, is what separates a logo you can protect from one you cannot.