The ™ symbol in Australia, what it means and when to use it

The ™ symbol is a small notice a business attaches to a brand name, logo or tagline to tell the market "we are using this sign as our trade mark". It does not require registration, does not prove ownership, and does not by itself create legal rights. In Australia its practical value sits somewhere between a marketing signal and the first step in building a protectable brand.

In this article we look at what the ™ symbol actually does under Australian law, how it differs from the ® symbol, what it can and cannot protect, and the misconceptions that cost small businesses money.

What the ™ symbol is and what it signals

The letters "™" stand for "trade mark". When you attach ™ to a name, logo, tagline or other sign, you are telling customers and competitors that you are using that sign to identify your business and its goods or services, and that you claim rights in it. It works as a public notice: "this is our brand, and we intend to protect it."

Nothing in the Trade Marks Act 1995 (Cth) (the Act) defines ™ or gives it a formal legal meaning. It is a convention that signals intention and claim, rather than a right granted by statute. There is no register of ™ usage, no application form for it, and no fee. Any business can start using it at any time.

You can use ™ without registering your brand

There is no legal requirement to register a trade mark with IP Australia before you use ™. IP Australia itself notes that trade marks can be registered or unregistered, and the ™ symbol is commonly used for unregistered signs from the moment a business starts trading under them.

The Act does not restrict who may use ™ or when. The only symbol-related offence in the Act targets a different symbol: s 151 of the Act makes it an offence, carrying a penalty of up to 60 penalty units, to represent that a trade mark is registered when you do not know, and have no reasonable grounds to believe, that it is registered in Australia. The absence of any equivalent rule for ™ is why it can be used freely, registered or not.

What ™ does not give you

Using ™ does not create exclusive rights. Registration does. Under s 20 of the Act, a registered owner holds the exclusive right to use the trade mark, and to authorise others to use it, in relation to the goods and services for which it is registered, plus the right to relief if the mark is infringed. Section 120 defines infringement: using, as a trade mark, a sign that is substantially identical with or deceptively similar to the registered mark in relation to the registered goods or services, and in some cases goods or services of the same description or closely related to them.

Without registration, your ™-marked brand rests on reputation-based claims. If someone adopts a confusingly similar name, you may be able to sue for passing off, a common law action that requires you to show the goodwill you have built in the sign, a misrepresentation that confuses consumers, and resulting damage. You may also rely on s 18 of the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)), which prohibits conduct in trade or commerce that is misleading or deceptive or likely to mislead or deceive. These routes exist, but they are harder to run than infringement: you must prove reputation and confusion with evidence, whereas a registration is a clear, recorded right.

™ versus ®: the registered symbol

The ® symbol means "registered trade mark". You should only use ® in Australia once IP Australia has registered your mark, and only for the goods and services covered by that registration. Section 151 of the Act makes it an offence to represent that a mark is registered when it is not, including representing that a registration covers goods or services it does not cover. There is also a risk that using ® for an unregistered mark breaches s 18 of the Australian Consumer Law as misleading or deceptive conduct.

In practice, many businesses use ™ from day one while an application is pending, then switch to ® once registration is granted for the covered goods and services, keeping ™ for any brand elements or product lines that remain unregistered.

Using ™ sensibly: placement and consistency

There are no strict legal rules about where to put ™ or how often to use it. Common practice is to place it after the brand name, at the top-right corner of a logo, or on the first prominent use on a webpage or package and then rely on context for later mentions. Superscript is common but not required.

Two cautions matter more than formatting. First, do not use ™ in a way that suggests your brand is registered when it is not, and never use ® for unregistered marks or for goods and services outside your registration. Second, be consistent: using ™ across your website, packaging, marketing and pitch materials strengthens the evidence that you have consistently treated the sign as a trade mark, which supports a reputation-based claim later if you need one.

The ™ symbol in practice: a worked example

Say Maya runs a small skincare business in Brisbane called "Dune & Salt" selling face creams under that name. She has not registered anything. She puts "Dune & Salt™" on her labels, website and packaging from launch day, partly because she wants customers to read the name as a brand, and partly to signal to other businesses that the name is hers.

Nine months in, a competitor launches a very similar name, "Dune & Saltwater", on similar products. Maya cannot sue for trade mark infringement because she has no registration. Her options are passing off or misleading or deceptive conduct under s 18 of the Australian Consumer Law, and both require her to prove that she has built reputation in the name and that consumers are likely to be confused. Her consistent use of ™, together with sales records, marketing spend and customer recognition, becomes her evidence.

If she had filed an application with IP Australia early, her position would be much stronger. IP Australia's own guidance puts the registration process at around seven months or more, with application costs starting at around $250. Section 44 of the Act would have allowed the examiner to reject the later, similar name at the application stage, and s 120 would give her an infringement action once registered. That is the difference between a symbol that asserts a claim and a registration that backs it up.

Common misconceptions about ™

A few misconceptions about ™ recur so often that they are worth naming:

• ™ means my brand is registered: It does not. ™ has nothing to do with the register; it is a claim of use and intention. Only ® signals registration, and only when that is true.
• ™ protects me from copycats: On its own it does not. ™ carries no statutory rights, so it cannot ground an infringement action. Registration is what turns the symbol's promise into an enforceable right.
• I am required by law to use ™ or ®: You are not. Displaying either symbol is optional, and many businesses simply never use them.
• Using ® is a harmless marketing choice: It can be an offence under s 151 of the Act if you represent an unregistered mark as registered, and it can also amount to misleading or deceptive conduct under the Australian Consumer Law.
• ™ proves I own the brand: It asserts a claim but proves nothing. Ownership of an unregistered brand is established by evidence of use and reputation; ownership of a registered brand is recorded on the register at IP Australia.

When a trade mark lawyer can help

A trade mark lawyer is most useful at two moments: before you file, and when enforcement becomes necessary.

Before filing, a lawyer can run a clearance search using tools such as IP Australia's TM Checker and Australian Trade Mark Search to identify identical or deceptively similar earlier marks that could block your application under s 44 of the Act, help you select the classes that match how you trade now and how you plan to grow, and draft the specification of goods and services so the protection matches your actual business. Getting the scope right at filing is far cheaper than fixing it later.

When someone adopts a confusingly similar brand, a lawyer can assess whether you have the stronger claim through infringement if you are registered, or through passing off and s 18 of the Australian Consumer Law if you are not, send a professional cease and desist letter, and if needed run court proceedings. A lawyer can also advise on renewals, since a registration lasts 10 years and is renewable, with a short grace period after expiry, and on extending protection overseas, for example through the international registration system under Part 17A of the Act, which lets a single application cover multiple member countries of the Madrid System.

The question your ™ should force you to answer

Every time you put ™ next to your brand, you are making a claim you cannot back up with a registration. The misconception that costs Australian businesses the most is treating the symbol as protection in itself, and discovering the difference only when a copycat appears and there is no registration to enforce.

So the useful question to ask about any sign you currently mark with ™ is simple: what is the filing date of your application with IP Australia? If you cannot name one, the symbol is only a promise. Registering your most important brand names and logos turns that promise into the exclusive, enforceable right described in s 20 of the Act, and it is a step best taken before you need it.