The ® symbol is widely recognised as a sign that a trade mark has been officially registered. However, in Australia, using the ® symbol is not simply a matter of choice or branding preference — it is governed by law. Misuse of this symbol can result in serious consequences under the Trade Marks Act 1995 (Cth). This article outlines when the ® symbol may be used, the rules surrounding its use, and the penalties for non-compliance.
What Does the ® Symbol Mean?
The ® symbol (short for “registered”) is a clear indicator that a trade mark is registered with a government trade marks office. In Australia, this means registration with IP Australia. The use of the ® symbol sends a public message that the trade mark owner has exclusive legal rights to use the mark in connection with specific goods or services.
When Can You Use the ® Symbol?
You may only use the ® symbol in Australia when your trade mark is formally registered with IP Australia. It is not enough to have lodged an application or to have an overseas registration — the mark must be fully registered in Australia.
Here are the key requirements:
- The mark must be registered: Only marks that have passed examination and have been officially entered into the Register of Trade Marks may use the ® symbol.
- The use must relate to registered goods/services: If your trade mark is registered only in respect of certain goods or services, you can only use the ® symbol when the mark is used in connection with those specific goods or services.
- Australian registration is required: Even if your mark is registered in other countries, you cannot use the ® symbol in Australia unless you also have an Australian registration.
Misuse of the ® Symbol: What the Law Says
Using the ® symbol when you are not entitled to do so is an offence under section 151 of the Trade Marks Act 1995. This provision exists to protect the integrity of the trade mark registration system and to prevent businesses from misleading the public or competitors.
Section 151 states that a person must not falsely represent that a mark is registered. A person may be in breach of this provision if they:
- Use the ® symbol in Australia in relation to a mark that is not registered in Australia;
- Represent that a trade mark is registered when it is not;
- Cause someone else to make a false representation about registration.
This includes situations where:
- A business uses the ® symbol on marketing materials, packaging or websites without having a registered trade mark;
- A person claims in promotional or legal correspondence that their trade mark is registered when it is not.
Penalties for Misuse
Breaching section 151 is a criminal offence. The current maximum penalty is 60 penalty units, which equates to a fine of $18,780 (as of July 2025, based on the current value of a penalty unit under the Crimes Act 1914).
In addition to criminal penalties, misuse of the ® symbol can result in reputational damage, loss of trust, and challenges from competitors or regulators. In some cases, it may also give rise to action under the Australian Consumer Law for misleading or deceptive conduct.
Best Practices
To avoid falling foul of the law, businesses should:
- Wait until registration is granted before using the ® symbol;
- Use the ™ symbol instead for pending trade marks or unregistered marks that are being used as indicators of brand;
- Ensure accurate use by reviewing product packaging, websites and promotional materials regularly;
- Seek legal advice if unsure whether your use of a trade mark complies with the law.
Conclusion
Using the ® symbol is a privilege reserved for those with a registered trade mark in Australia. It’s a powerful symbol of protection, but it must be used correctly. Falsely representing a trade mark as registered is not only misleading — it’s an offence under the Trade Marks Act 1995. Businesses and brand owners should take care to understand and comply with these rules to avoid penalties and maintain their professional reputation.
If you are unsure about your trade mark rights or whether you can use the ® symbol, speak with an experienced trade mark lawyer to ensure you are on the right side of the law.
