When filing a trade mark application, protection is not automatic.  The application is “examined” to see if the mark is registrable.  There are various reasons why a trade marks examiner may raise objections to an application.  The two most common are:

• The mark is descriptive of the goods or services or “laudatory” – praising of the product eg CRANBERRY CLASSIC for cranberry juice;

• There is a prior mark on the Trade Marks Register that is deceptively similar to your mark.

Evidence of use

A common way of trying to overcome such an objection is to file evidence of your use of your mark.  This can show either:

• because of your substantial level of use of your mark, it has become exclusively associated with your products – to overcome a descriptiveness objection; or

• you have used your mark before the filing date of the conflicting mark (“cited mark”) or, if your first use is later, that you have made substantial use of your mark honestly at the same time and in the same area as the cited mark.

Good quality evidence can be highly persuasive of the argument you are trying to make to a trade marks examiner.  But what does good quality evidence look like?

Showing use of the trade mark

Evidence usually needs to focus on the promotion of the trade mark or its use on invoices, as well as photos of packaging and signage.  Evidence preliminary to actually using the mark in a business to solicit purchases is not strictly relevant to evidence of use of the mark.  This could be evidence of the commissioning a logo or registering a domain name or business name.  However, this evidence might corroborate other evidence of when the mark was first used.

Dates are important

Dates are important before the Trade Marks Office.  This is especially true if you are trying to prove that you were first to use the mark.

Try to provide dated documents to your lawyer or attorney.  The Wayback Machine is an invaluable source of material for this type of evidence.  The Wayback Machine https://web.archive.org/ is an archive of dated examples of the appearance of millions of websites over the years.  A website is a prime example of how a trade mark has been used to advertise products.  This evidence can be gold.  Social media sites may also provide dated evidence of the promotion of the mark.

Sales and advertising figures

Evidence of use of a trade mark will normally require you to set out sales and advertising figures.  It is possible to ask that the Trade Marks Office does not disclose this information to third parties through a freedom of information search of the trade mark file, to provide confidentiality to the figures.  Figures usually need to be provided over several years.  It is important that the figures relate specifically to the trade mark in question.  If this breakdown is not possible, an estimate of the proportion of the figures that relate to the specific trade mark should be given.

Website analytics

Including website analytics in the declaration is often very helpful.  Such analytics can show the number of unique visits to particular pages of the website and may show the countries of visitors to the website.  Only visits from Australians are relevant to a case before the Trade Marks Office.

An experienced trade marks lawyer or trade marks attorney can prepare a declaration to be filed at the Trade Marks Office based on the documents and information that you provide them.  The better the quality of the evidence, the more likely that you will receive a favourable response to your trade mark application.

I can assist clients in preparing evidence to submit to the Trade Marks Office.

This blog provides general information only, and is not intended as legal advice specific to your circumstances.  Please seek the advice of a lawyer or trade marks attorney if you have any particular questions.

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© Margaret Ryan, Melbourne, Australia, 2026