You’ve probably seen them both: the little ™ hovering after a brand name, and the ® that signals something more official. But which one should your business be using and what happens if you use the wrong one?
For Australian business owners and founders, understanding the difference between these two symbols is more than a typography question. It’s a legal one. Using ® without a registered trade mark can expose your business to serious consequences, while failing to use ™ or ® at all means leaving your brand identity unguarded.
Let’s break it down clearly.
The Short Answer
™ means you’re claiming a trade mark, but it hasn’t been officially registered. ® means your trade mark has been registered with the relevant authority. In Australia, that’s IP Australia.
Both symbols communicate that you’re asserting brand ownership. But only ® comes with the full legal backing of a registered trade mark.
What Does ™ Mean?
™ stands for “trade mark.” It’s an unregistered trade mark symbol, and in Australia, anyone can use it freely. No registration required.
When you’d use ™:
- You’re using a brand name, logo, or slogan in commerce but haven’t yet filed a trade mark application with IP Australia.
- You’ve filed an application and it’s still pending. You can use ™ in the meantime.
- You’re using a mark in a way that doesn’t qualify for registration, but you still want to signal ownership.
What protection does ™ give you?
Limited, but not nothing. Under Australian common law, you may have rights in an unregistered trade mark if you’ve used it extensively and built up genuine consumer recognition (known as “reputation” or “goodwill”).
However, enforcing those rights is significantly harder and more expensive than enforcing a registered trade mark. You’d need to prove, with evidence, that:
- Your brand has built up a genuine reputation in Australia.
- A competitor’s use of a similar mark is likely to cause confusion.
- You’ve suffered (or are likely to suffer) actual harm as a result.
That’s a high bar to clear in court. Registration removes most of that burden.
What Does ® Mean?
® stands for “registered trade mark.” In Australia, you can only use this symbol once your trade mark has been officially registered with IP Australia.
What registration actually gives you:
- Exclusive legal rights to use the mark for the goods and services it’s registered under.
- The ability to take legal action against infringers without having to prove reputation.
- A public record of your ownership, which deters competitors from adopting similar marks.
- A registered asset that can be licensed, sold, or used as security in financing.
Registration lasts for 10 years and can be renewed indefinitely. For most businesses, it’s one of the most cost-effective forms of legal protection available.
Side-by-Side Comparison
| ™ Trade Mark Symbol | ® Registered Trade Mark | |
| Legal status | No registration required | Registered with IP Australia |
| Who can use it? | Anyone using a mark in commerce | Only the registered trade mark owner |
| Legal protection | Limited. Relies on common law | Strong. Full statutory rights |
| Enforcement | Harder. Must prove reputation | Easier. Registration is proof of ownership |
| Cost | Free to use | Application + registration fees |
| Duration | Indefinite (as long as you use it) | 10 years, renewable indefinitely |
Can I Use ® Before My Trade Mark Is Registered?
No. Using ® before your trade mark is registered is not just misleading, it can be considered a false representation under Australian Consumer Law and in some circumstances may constitute a criminal offence.
This is one of the most common mistakes we see from businesses that have registered their company name with ASIC, or purchased a domain name, and mistakenly believe that constitutes trade mark registration. It does not.
Company name registration and domain name registration do not give you trade mark rights. Your ASIC registration gives you the right to operate under that name; it does not stop another business from registering an identical or similar trade mark.
If you’re currently using ® on your branding without a registered trade mark, we recommend updating your materials to ™ immediately and seeking advice about filing an application.
What About While My Application Is Pending?
During the examination and registration process, which in Australia typically takes 7–15+ months — your trade mark is not yet registered. During this period:
- Use ™, not ®.
- Your filing date is still important – it establishes priority if a conflict arises.
- Continue to monitor IP Australia’s trade marks register for similar applications.
Once your trade mark achieves registration, you can begin using ® and update your branding accordingly.
Common Questions We Hear From Business Owners
“I’ve been using my brand name for years. Am I protected without registering?”
Possibly, through common law rights but your protection is harder to enforce. If your brand has built up a strong reputation in a specific market, you may be able to bring a passing off action or under the Australian Consumer Laws for misleading and deceptive conduct, but this requires expensive legal proceedings and considerable evidence. Registration is far more straightforward.
“Does using ™ stop others from registering a similar trade mark?”
No. The ™ symbol has no formal legal status with IP Australia. Only filing a trade mark application gives you a priority date and the ability to oppose conflicting registrations. If a competitor files before you, they may be entitled to the registered trade mark even if you’ve been using the name longer.
“Do I need to use the symbol at all?”
It’s not legally required in Australia, but it’s strongly recommended. Using ® signals to competitors that your mark is registered and sends a clear deterrent message. Not using it can mean infringers claim they were unaware of your rights, which may affect the remedies available to you.
“Can I use ® for a trade mark registered overseas but not in Australia?”
No. ® should only be used in Australia for trade marks that are registered with IP Australia. A US or UK registration does not entitle you to use ® in Australia. Each country has its own trade mark register.
What Should You Do Now?
If you’re currently trading under a brand name, selling products, or building any kind of business identity, here’s a straightforward action plan:
- Check your current status. Search the IP Australia trade marks register to see if your mark is registered, pending, or unregistered.
- Use the right symbol. If you’re not registered, use ™. If you are, use ®.
- Consider filing sooner rather than later. The longer you wait, the more exposed you are to a competitor registering a similar mark before you do.
- Get a trade mark clearance search done first. Before filing, it’s worth checking there are no conflicting existing marks. A professional search can save you time, money, and disappointment.
Ready to Protect Your Brand?
At brandU Legal, we help Australian businesses secure trade mark protection that actually holds up. Whether you’re just starting out or need to review your existing IP portfolio, we’re here to help.
Reach out to our team for a free discovery consultation.