The ® and ™ symbols, and false claims

Neither symbol is required. For the ®, IP Australia says you don’t have to use it and keep your exclusive rights either way. Either symbol can go wherever you like, though it is generally set in superscript or subscript on the right-hand side of the mark.

IP Australia says the ® should be used next to the mark only when it is used in its registered form. Its example: if you registered a logo that contains a word, the ® shouldn’t go next to the word on its own.

The same point runs through the goods and services. A registration covers the goods and services it lists, not every good or service. Section 151(3), below, deals with a claim that a mark is registered for goods or services it isn’t registered for.

Registration takes at least 7 months from filing, so a new mark spends months as an application. In that time the ™ is the symbol IP Australia describes for an unregistered mark, as a way of telling other traders there may be legal rights in it. The ® waits: IP Australia says it is an offence to use it before the mark is registered. Each step of that wait is set out in registering a trade mark.

Section 151 of the Trade Marks Act 1995 is headed “False representations regarding trade marks.” Each of its first four subsections carries a penalty of 60 penalty units.

Section 151(4) turns on conditions or limitations entered in the Register. Section 20(4) says that a mark registered subject to conditions or limitations gives its owner rights restricted by them.

Words count as well as symbols

Section 151(5) says that using, in Australia, the word “registered”, or “any other word or any symbol referring (either expressly or by implication) to registration”, counts as claiming the mark is registered in Australia for the goods or services it is used with. The exception is for a mark registered in another country for those goods or services, where the word or symbol itself, or other words or symbols of the same or a bigger size used with it, show that it is registered outside Australia, or where it is used on goods to be exported to that country.

The Act’s note to section 151 points to its Reader’s Guide for information about penalties, and the Reader’s Guide says: “Section 4AA of the Crimes Act 1914 sets out the amount of a penalty unit. Under subsection 4B(3) of that Act a court may impose on a body corporate convicted of an offence a fine of up to 5 times the amount of the fine that could be imposed on a natural person convicted of that offence.” So 60 penalty units is the cap for an individual, and a company can be fined up to 5 times that. The ACCC says the Crimes Act 1914 prescribes the value of a penalty unit, and that it rose from $330 to $364 on 1 July 2026.

A business name registration is not a trade mark registration, and IP Australia says it doesn’t give exclusive rights to the name. A company is a separate legal entity and can own a trade mark; a business name can’t, because the mark is owned by the business owner or owners. The status of a registration can be checked at any time on Australian Trade Mark Search, the register described in searching before you choose a name.