The decision usually lands in the week before you order packaging. The name, the logo and the tagline have been locked in for months, and now the label artwork is back from the designer with a small question in the corner: does the brand get ™ or ® next to it? It reads like a formatting choice, the kind of detail you can settle in an afternoon. In Australia it is a legal one. Choosing the wrong symbol, or putting the right symbol next to the wrong brand element, can expose your business to fines and misleading-conduct claims at exactly the moment your brand starts to matter.
The real question behind the symbols
"How do I use the trade mark symbol?" is the question most business owners ask, but it hides a narrower one that actually needs answering: which symbol am I entitled to use, and when? You have three options, not two:
- ™ (trade mark): a claim that a sign is your trade mark. It can be used whether the mark is registered or not.
- ® (registered): a statement that the trade mark is registered in Australia. Using it carries legal conditions.
- No symbol: a legitimate option. Neither symbol is compulsory under Australian law, and a registered owner keeps their exclusive rights whether or not they display ®.
Two assumptions commonly get in the way. The first is that ® is simply the stronger-looking version of ™, a marketing flourish you upgrade to when your brand gets serious. It is not: the Trade Marks Act 1995 (Cth) treats ® as a factual claim and regulates it directly. The second is that ™ is only for marks going through registration. It is not: ™ works fine on an unregistered brand and is often the right choice while an application is pending.
The factors that should drive your choice
What each symbol actually claims
Start with what the market understands each symbol to mean, because that is what the law polices.
™ signals that you are claiming a sign as your trade mark, whether or not it is registered. As IP Australia explains, the ™ symbol symbolises that you are claiming trade mark rights, but it does not mean the rights exist, or that the mark is registrable or enforceable. Its practical jobs are to put other traders on notice that you treat the sign as your brand, and to help show that the sign is being used as a trade mark rather than descriptively.
® means the mark is registered. Because that is a statement of fact, the Trade Marks Act 1995 (Cth) regulates it directly. Section 151 makes it an offence to represent that a trade mark is registered when you know, or have reasonable grounds to believe, that it is not. The maximum penalty is 60 penalty units, roughly $20,000 at current values. Section 151 also catches the two variations that trip businesses up most often: representing that part of a registered mark is itself registered when it is not, and representing that a mark is registered for goods or services it is not registered for.
On top of the offence, the same conduct can breach s 18 of the Australian Consumer Law (ACL), which sits in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and prohibits misleading or deceptive conduct in trade or commerce. A competitor, a customer or a regulator can point to a ® symbol on an unregistered mark as a representation that is simply untrue, and the ACL opens the door to remedies that the offence provision does not. The difference between them, in one line each:
- ™: a claim only. Safe for registered and unregistered marks. Creates no rights by itself.
- ®: a statement of registration. Restricted to registered marks, and only for the goods and services covered by the registration.
One nearby confusion is worth clearing up: the copyright symbol © is a different device altogether. It signals copyright in original creative works such as text, photos and design elements, and it has nothing to do with whether your brand name is protected as a trade mark. Putting © next to your business name does not strengthen your trade mark position, and neither ™ nor ® says anything about copyright.
Your registration status: the gate that controls ®
The single fact that controls whether you may use ® is whether IP Australia has actually registered the mark. An application that is pending is not a registration. If you filed yesterday, or the examiner is still reviewing the application, the mark is unregistered and ® is off limits.
The practical timeline matters here. According to IP Australia, registration takes at least seven months from filing, and application fees start at $250. A registration lasts up to 10 years and can be renewed indefinitely; renewal is dealt with in s 77 of the Trade Marks Act 1995 (Cth). In between, ™ is the symbol that accurately describes your position: you are claiming the brand while the application works its way through examination.
Registration also comes with boundaries. A trade mark is registered only in respect of the goods and services you specified in the application, organised into classes, and it protects you only within Australia. Using ® on products or services outside that coverage is a misrepresentation of the kind s 151(3) of the Act targets, and IP Australia's own guidance is that the symbol should only be used next to the mark in its registered form.
Whether your brand can be a trade mark at all
Not every sign can be a trade mark, and adding a symbol does not change that. Section 17 of the Trade Marks Act 1995 (Cth) defines a trade mark as a sign used, or intended to be used, to distinguish your goods or services from those of anyone else. Signs that merely describe what you sell, or that other traders legitimately need to use, generally cannot be registered. IP Australia gives the examples of "warm" for heaters and "ultra white" for paper.
This matters for the symbol decision because ™ next to a descriptive word does not strengthen your position. If your business name is protectable but the word "cleaning" is not, sprinkling ™ through a sales page next to ordinary words creates clutter, not rights. Apply the symbol to the brand identifier you are actually claiming, and save the harder questions for the parts of the brand that can be protected.
Two related misconceptions cost businesses real money at this stage. Registering a business name with ASIC does not give you trade mark rights; it is a regulatory registration that records who is trading under the name, nothing more. Owning a domain name is the same story. IP Australia flags both as common mistakes: neither gives you exclusive rights to the name, and neither stops another business from using a similar name as a trade mark.
Matching the symbol to the exact asset that is registered
Trade marks protect specific assets: a word mark for the business name, a logo, a tagline, or a product range name. Each can be protected separately, and the symbol must match the asset that is actually registered.
IP Australia's example is the one that trips up most businesses: if you have registered a logo that contains a word, you should not put ® next to the word on its own. The word, standing alone, is a different sign from the registered logo, and the symbol claims more than your registration covers. The same logic applies in reverse. A registered word mark does not authorise ® next to a logo that was never examined or registered. Section 151(2) of the Act backs this up: representing that part of a registered trade mark is itself registered, when it is not, is its own offence.
Consistency and placement
There is no mandatory position for either symbol. IP Australia notes that the symbols are generally presented in superscript or subscript on the right-hand side of the mark, and that you do not have to use them at all. The discipline that matters is consistency.
Decide once where the symbol sits, and apply it the same way across your website, packaging, social media and invoices. Apply it to the core brand identifier you are claiming, not to every word on the page. For an unregistered brand, consistent ™ use does real work over time: it builds a record that you have been using the sign as a trade mark, which can support a later registration application and helps establish your claim if a dispute arises. Consistency is evidence; sporadic use is noise.
How an Artificer Legal trade mark lawyer helps you make the call
The symbol decision is quick once the underlying facts are known, and that is where a trade mark lawyer earns their fee: working out what the facts actually are before you print anything.
An Artificer Legal practitioner would start with a clearance search, checking existing registered and pending marks for anything too close to your name, because it is far cheaper to change a name before packaging, signage and SEO are committed than after. They would then assess whether your brand is capable of being registered at all, having regard to the distinctiveness test in s 17 of the Trade Marks Act 1995 (Cth), and advise on realistic prospects before you spend money on an application.
If registration is the path, the lawyer drafts the application with care around the specification: which goods and services to claim, which classes to use, and how to describe the mark so the registration actually covers what you sell. That specification is what your ® symbol will later be measured against, so getting it wrong at filing limits your rights for the life of the registration.
The lawyer also stress-tests the downside. If you have been using ® on an unregistered mark, they can assess your exposure under s 151 of the Trade Marks Act 1995 (Cth) and s 18 of the ACL, and plan the correction before it becomes a complaint. And once the mark is registered, they can advise on enforcement against imitators through an infringement action under s 120 of the Act, and on licensing arrangements if other businesses want to use the brand.
The symbol is a statement of fact, not a style choice
The mistake that costs the most in this area is treating ® as decoration. It is the one symbol whose use the law regulates directly, and using it before registration converts a packaging detail into a false representation: a fine of up to 60 penalty units, exposure under the misleading-conduct provisions of the ACL, and the practical cost of reprinting everything that went out with the wrong symbol. The question your business should be able to answer before the next artwork round is not "which symbol looks better" but "is this mark registered, and for exactly which goods and services?" If you cannot answer it with confidence, hold the symbol until you can.
To summarise: ™ signals a claim of trade mark rights and is available whether your mark is registered or not. ® is reserved for marks that IP Australia has actually registered, and only for the goods and services the registration covers. Neither symbol is compulsory. Registration takes at least seven months, costs from $250, lasts up to 10 years and is renewable, but it protects only what you specified in the application, in Australia. A business name registration and a domain name give you no trade mark rights at all. Symbols go on the core brand identifier, consistently, and on the exact asset that is protected. Where the facts are unclear, a trade mark lawyer can clear the name, scope the application and keep your marketing claims on the right side of the law.