Insight
™ vs ® in Australia
18 September 2026
In short
™ is an informal claim to a trade mark and anyone can use it. ® means the mark is registered, and in Australia it may only be used for a mark actually on the Trade Marks Register, for the goods and services it covers. Using ® without registration is a false representation under the Trade Marks Act 1995 (Cth).
The ™ symbol
™ says "we treat this as our brand". It has no statutory effect in Australia and confers no exclusive rights. You can apply it to a business name, logo, product name, tagline or packaging shape from the day you start trading, whether or not you have filed anything.
It is still worth using. It discourages casual copying, it signals to distributors and resellers what belongs to you, and the dated material carrying the symbol can help prove when your use began — which matters in Australia, because prior use can defeat a later application by someone else.
The ® symbol
® means registered. In Australia you may only use it where the mark is registered with IP Australia and you are the owner or an authorised user, and only in relation to the goods and services in the registration. Section 151 of the Trade Marks Act 1995 (Cth) makes it an offence to falsely represent that a mark is registered, including using ® for an unregistered mark or outside the registered classes.
Two traps are common. First, overseas registration: a US or EU registration does not entitle you to use ® in Australia. Second, brand drift — the registration covers one logo or word, but the symbol keeps travelling with a redesigned mark or a new product line in classes you never filed.
Practical rules
- Unregistered mark, or application still pending → use ™.
- Registered in Australia, used within the registered classes → use ® .
- Registered overseas only → use ™ on Australian-facing material.
- Place the symbol on first or most prominent use, not on every mention.
- Keep a brand register: each mark, its status, application number, classes and renewal date.
- Give licensees and resellers written rules on symbol use — their misuse is your exposure.
Why registration is the part that matters
Symbols are labelling. Enforcement comes from the register. A registered mark gives you a statutory monopoly in your classes, a straightforward infringement action, standing to oppose later applications, and an asset that can be licensed, valued and sold with the business. Without registration you are left with passing off and the misleading-conduct provisions of the Australian Consumer Law — slower, more expensive and evidence-heavy.
Before filing, search. A clearance search across the register and common-law use tells you whether the mark is available and whether someone else's earlier rights make your branding a liability. See trade mark searches in Australia.
When to involve a lawyer
- You are about to invest in packaging, signage or a rebrand and have not cleared the mark.
- You have received an examination report, an opposition, or a letter of demand about your branding.
- Someone is using a confusingly similar name in your market.
- You are licensing your brand, franchising, or selling the business and the IP must be clean.
- You use ® now and are not certain the registration covers what you are selling.
Frequently asked questions
Can I use ™ without registering a trade mark?
Yes. The ™ symbol has no statutory status in Australia. It simply signals that you treat the word, logo or phrase as your trade mark. It creates no monopoly, but it does help evidence the date from which you used the mark if a dispute over ownership arises later.
When can I use the ® symbol?
Only once the mark is registered on the Australian Trade Marks Register, and only for the goods and services covered by that registration. Using ® for an unregistered mark, or on goods outside the registered classes, can breach section 151 of the Trade Marks Act 1995 (Cth) as a false representation about registration.
What if my mark is registered overseas but not in Australia?
Do not use ® on Australian-facing material. Registration is territorial. A US or UK registration does not permit the symbol here, and Australian consumers and competitors will read it as a claim to an Australian registration.
Do I have to use a symbol at all?
No. Neither symbol is required and your rights do not depend on it. Consistent use of the symbol is still useful commercially: it deters copycats, supports brand distinctiveness and puts licensees and distributors on notice about what they may and may not use.
What about ℠ and ©?
℠ is a US service-mark convention with no meaning in Australia — use ™ instead. © relates to copyright, which is a different right that arises automatically in original material and is never registered in Australia.
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