Using the registered trade mark symbol in Australia and your legal obligations

Adding a small ® beside your brand name or logo is one of the clearest ways to tell customers and competitors that your trade mark is registered and backed by enforceable rights. In Australia the symbol carries legal weight. You may only use it once your trade mark is actually registered here, and only for the exact mark and the goods or services your registration covers. Using ® on anything else can be an offence under the Trade Marks Act 1995 (Cth) (the Act), with a penalty of up to 60 penalty units.

The rules apply to any business that puts ® in front of customers, whether on packaging, a website, social media or a pitch deck. This guide sets out who the obligations apply to, the five duties that keep you compliant, the penalties for getting it wrong, and the practical steps you can take to check your own branding today.

Who the symbol rules apply to

The obligations are not limited to trade mark owners, and there is no turnover or size threshold. Any person who uses the symbol in Australia in the course of trade can be caught, from a sole trader with a single product to a national franchisor. The trigger is the representation itself.

The symbol is a representation: Under s 151(5) of the Act, using the word registered or any symbol that refers to registration, including ®, is taken to be a representation that the trade mark is registered in Australia in respect of the goods or services it is used with. The offence does not require proof that anyone was actually misled.
Knowledge is the dividing line: The offence in s 151(1) applies to a person who makes the representation without knowing, or without reasonable grounds to believe, that the mark is registered in Australia. Filing an application is not enough. Until the Registrar grants registration, there are no reasonable grounds to believe the mark is registered.
Symbol use down the chain: If you licence your mark to a distributor, franchisee or partner, their use of the symbol is also a representation. Set the rules for symbol use in your licence agreement so the whole chain stays compliant.
Overseas registrations do not carry over: If your mark is registered overseas but not in Australia, using ® here is still treated as a representation that it is registered in Australia. Section 151(5) only makes an exception where the symbol itself indicates the other country, or the goods are being exported there. The practical rule is to use ™ in Australia until your mark is registered locally.

Only use ® after registration is granted

Registration is handled by IP Australia under the Act. As business.gov.au explains, a registered trade mark gives your business exclusive rights to use the mark in Australia and the legal right to place the ® symbol next to it.

The process has four steps: application, examination, acceptance and registration. IP Australia's guidance on timeframes and fees notes that the minimum time between filing and registration is seven months. You can use ® only once the final step is complete and your mark is on the register. Until then, the correct symbol is ™.

Word marks and logos: Your registration covers the mark exactly as filed. If you registered a word, ® belongs with that word in standard type. If you registered a stylised logo, ® belongs with that logo.
Substantial redesigns: A heavily redesigned logo is a new mark. Section 151(2) makes it an offence to represent that a part of a trade mark is registered when it is not. If your brand has changed, file a fresh application and use ™ on the new version until it registers.

Match the symbol to the exact mark you registered

Trade mark registration is specific. Your certificate and the register entry show exactly what is protected: the mark, the classes, and the owner. If you registered the word mark Blue Gum Coffee but not the logo, ® belongs with the word, not with the stylised version.

Taglines and sub-brands: A new tagline is a separate mark. Use ™ until it is registered.
Brand families: A common approach is to use ™ across the brand family and apply ® only to the specific registered elements. This keeps you accurate about the scope of your rights while still putting the market on notice.

Keep ® inside your registered classes

Trade marks are registered for specific goods and services, drawn from 45 classes. IP Australia's application picklist contains more than 60,000 descriptions. Your exclusive rights extend only to the classes you selected, and so does your right to use ®.

Section 151(3) makes it an offence to represent that a trade mark is registered in respect of goods or services when it is not. A mark registered for coffee in class 30 does not authorise ® on the t-shirts you just launched in class 25. For new product lines outside your registration, use ™ until you file to extend your protection.

Keep the registration alive

A trade mark registration lasts 10 years from the filing date, and it can be renewed for further 10-year periods under s 77 of the Act. If you miss the renewal window, s 79 allows renewal within six months after the registration expires, but the registration lapses in the meantime. If it lapses, stop using ® until the renewal is recorded. A registration that is never renewed is removed from the register, and the symbol can no longer be used with the mark.

There is a second way to lose a registration that many businesses do not expect: non-use. Under s 92(4)(b) of the Act, a third party can apply to have a trade mark removed if it has not been used in good faith in Australia for a continuous period of three years. A registration that sits unused can be cancelled, taking your right to ® with it.

Use ™ while your application is pending

The ™ symbol signals a claim to rights in a mark, not registration. It is the correct choice in three situations: while your application is pending; for brand elements that are not registered, such as a new tagline or a redesigned logo; and for marks registered overseas but not yet in Australia. There is no offence in using ™ for an unregistered mark. Once your registration is granted, switch the registered elements to ® and keep ™ on the rest.

The penalties and risks of getting it wrong

Using the symbol when you are not entitled to can expose your business in three ways:

Criminal offence: Section 151 of the Act carries a penalty of 60 penalty units for each offence. At the current Commonwealth penalty unit value of $330 set by s 4AA of the Crimes Act 1914 (Cth), that is a maximum of $19,800 per offence, imposed by a court. The section creates separate offences for representing a mark, a part of a mark, or particular goods or services as registered.
Infringement exposure: If you use ® on a mark that belongs to someone else, you may face infringement proceedings under s 120 of the Act. Under s 126, a court can grant an injunction and, at the plaintiff's option, damages or an account of profits.
Consumer law exposure: Representing that your business or brand is registered when it is not can also raise issues under the misleading or deceptive conduct provisions of the Australian Consumer Law, and customers or competitors can complain to regulators.

A compliance checklist for your brand

Work through these checks before and after you place the symbol on anything:

Verify before you use it: Before placing ® anywhere, check the mark, the owner and the classes on the Australian Trade Mark Search.
Confirm the scope: Check that your registration covers the exact mark (word, logo or both) and the classes for the goods and services you are actually selling.
Segregate the symbols: Use ™ for pending applications, new taglines, redesigned logos and overseas-only marks.
Diarise the renewal date: Renew before expiry, and if you miss it, act within the six-month grace period in s 79.
Keep using the mark: Genuine use in Australia on the registered goods or services protects you against removal under s 92.
Keep collateral current: Websites, packaging, social media bios, email footers and pitch decks should all carry the same symbol treatment.
Update after changes: A rebrand or a new product line means a new filing, with ™ until it registers.

When a trade mark lawyer should be involved

A lawyer can help at each stage of your trade mark's life:

Before filing: Clearance searching against the register, choosing the right classes, and deciding between TM Headstart, IP Australia's pre-application service which starts at $330, and a standard application which starts at $250.
During examination: Responding to examination reports and handling oppositions within the two-month window after your application is advertised in the Australian Official Journal of Trade Marks.
After registration: Managing renewals, assessing non-use risk, drafting licences and assignments, and enforcing your rights if someone else misuses your mark.

A practitioner will review your brand portfolio, check that your symbol usage matches the scope of your registrations, and advise on the specific classes and filings you need. That matters because the law turns on the exact mark and the exact goods and services, and those details are easy to get wrong without the register in front of you.

The rebrand that quietly makes your ® illegal

The duty most often missed is not the initial registration. It is what happens after a rebrand or a product launch. A business registers a word mark, then redesigns its logo, or adds a new product range, and keeps using ® on everything. The old registration does not cover the new logo or the new class. The symbol is now a representation that the mark is registered for those goods in Australia, which it is not, and the business is exposed to the s 151 offence without realising anything has changed.

The second trap is time. Registration lasts 10 years, and it can be lost after three years of disuse. Both dates are easy to lose track of in a busy business.

The first action to take this week: pull out your registration certificate, confirm the renewal date and the classes, and walk through each place your brand appears to check the symbol matches what is actually registered. If your branding has changed since you filed, start a new application now and switch that asset to ™ in the meantime.