Registering a trade mark for a business name is more important than you might think. Registering a business name or domain name does not give you the exclusive right of use. However, registering your business name as a trade mark gives you the exclusive right to use the trade mark throughout Australia.

What is a trade mark?

A trade mark is the key to distinguish your business and product from others. A trade mark can be in the form of words, a picture, a logo, a sound, a smell, an animation or a combination of these. You may register your brand name (i.e. Nike), product name (i.e. Vegemite), corporate logo (i.e. David Jones) or even a slogan in your advertising materials (i.e. "Impossible is Nothing") as a trade mark.

Some business names may still be considered as being a trade mark, even if they are not registered, if they have been used in building a sufficient reputation from the business name in the past. However, only formal registration creates protection under the Trade Marks Act.

How to know if a business name has a registered trade mark?

All registered trade marks can be found by conducting searches on the Australian trade marks register.

Protecting your trade mark

It is against the law to use another person's trade mark, whether the trade mark is registered or not. If you discover anyone else using your trade mark, you may take legal action against them. However, defending an unregistered trade mark can be more difficult and expensive. Businesses should consider registering their trade marks to establish clear ownership.

How to register a trade mark in Australia?

A trade mark registration application involves the following considerations:

Determine the trade mark you wish to register (words, logo, picture or others). The trade mark must be distinctive enough to distinguish your products or business from others.Ensure that you are not registering an existing trade mark or a common or prohibited sign, word or phrase.

Think carefully about the types of goods and services you want to have protected by a trade mark. There are 45 classes of goods and services listed on the trade mark database. The more classes you choose for your trade mark, the higher your application fee will be. You will not be able to expand your list of goods and services once the application is filed.Ensure that the trade mark is owned by an eligible body (for example, under your personal name or under the name of the business).For formal approval, your trade mark application may take three to four months from the initial examination. If your application does not meet the legal requirements, then you will receive a report advising the adverse reason (for example, your trade mark might be a common phrase that could be needed by other traders) and options for overcoming such technical reasons.

Once registered, your trade mark will be listed in the Australian trade mark register. You will need to continuously use your trade mark, as an unused trade mark can be removed from the register. After registration, you may assign, licence or franchise your trade mark.

How to register a trade mark internationally?

Internationally, you may apply for a trade mark directly with each foreign country's trade mark system. Alternatively, if you have a registered Australian trade mark, you may file an international trade mark application through the Madrid Protocol system seeking protection in respect to member countries.

If you need any assistance on registering a trade mark or protecting your trade mark from being used by others, please feel free to contact our Accredited Specialists in Commercial Law, Mitchell Zadow on (03) 8561 3318.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by a member of our Legal Team

For further information contact

Mitchell Zadow

Mitchell is the Managing Principal of our law practice.

He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate. For further information, contact Mitchell on his direct line (03) 8561 3318.

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Registering a trade mark for a business name is more important than you might think. Registering a business name or domain name does not give you the exclusive right of use. However, registering your business name as a trade mark gives you the exclusive right to use the trade mark throughout Australia.

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Supreme Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be published on the Supreme Court website for at least 14 days prior to any application being lodged.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate or Letters of Administration. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.

You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE:

(03) 8561 3318

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Why you should register a trade mark for your business name

What is a trade mark?

How to know if a business name has a registered trade mark?

Protecting your trade mark

How to register a trade mark in Australia?