What is prior use of a trade mark?

It means you used the mark in Australia, in trade, before someone else's conflicting mark was filed, and kept using it. In IP Australia's examination process, evidence of prior use can let an application go ahead despite an earlier similar mark.

Is registering my business name enough?

No. IP Australia says registering a business name doesn't give you exclusive rights to it. A trade mark is a separate thing, registered or not.

Which dates matter most?

The date you first used the mark in Australia, the other mark's priority date (usually its filing date) and the date you filed your own application. Your evidence should show use starting before the first of those and continuing until at least your filing date.

Do I need lots of sales to show prior use?

Not necessarily. IP Australia's examiners' manual says the extent of use is not a relevant factor; genuine, continuous use in trade during the period is what counts. Records that show dates through the whole period matter most.

Can screenshots of my old website help?

They can be useful exhibits if they show the mark and a date. Full-page captures with the URL, plus independent archive copies, are usually more useful than cropped images. Timestamping new captures shows they existed no later than a recorded time.

Does a timestamp show I own the trade mark?

No. It shows a file existed no later than the recorded time. It doesn't show who made it, that its contents are true, or who owns the mark. That depends on your use and on how IP Australia or a court weighs your evidence.

How to Prove Prior Use of a Trademark in Australia

To show prior use of a trade mark in Australia, you need dated evidence that you used the name or logo in trade before the other mark’s priority date, and kept using it since. IP Australia says your declaration “needs to show you used your trade mark before the priority date of the earlier mark, and that your use has been continuous at least up to the date you filed your application.” Useful exhibits include invoices, sales figures, photos of signage and packaging, ads, and captures of your website and social pages, each showing the mark and a date. A bare statement of when you started isn’t enough. Keeping and timestamping these records as you go shows each file existed no later than a recorded time. It doesn’t show you own the mark, so see a trade mark attorney if a dispute starts.

How to prove prior use of a trademark: the short answer
Registered and unregistered trade marks in Australia
What counts as use, and how much you need
Evidence checklist: what to keep and how often
Making your records harder to doubt
When to see a trade mark attorney
When TimeBinder isn’t the right tool
TimeBinder pricing
Frequently Asked Questions

How to prove prior use of a trademark: the short answer

Prior use comes down to two dates and one unbroken line between them:

When you first used the mark in Australia to sell your goods or services. This has to be before the other mark’s priority date, which IP Australia says “is usually the date it is filed”.
That your use was continuous from then until at least the date you filed your own application.
Dated exhibits that back up both. IP Australia’s advice is direct: “Provide clearly dated examples as exhibits to support your claims.”

IP Australia puts the evidence in a declaration, with a cover letter and exhibits. It also warns: “Unsupported statements such as ’I first used this trade mark in 1990’ won’t be sufficient.”

This guide gives general information, not legal advice.

Registered and unregistered trade marks in Australia

You can use a name or logo as a trade mark without registering it. IP Australia notes: “A registered trade mark generally provides stronger legal protection than an unregistered trade mark.”

Two common mix-ups:

A business name is not a trade mark. IP Australia says “registering a business name doesn’t give you exclusive rights to it.”
A domain name is not a trade mark either. It gives you the web address, not rights in the name.

Prior use matters most when someone else applies for, or registers, a similar mark for similar goods or services. In IP Australia’s examination process, an applicant facing an earlier conflicting mark can file evidence of prior use. The rules for oppositions and court disputes are different, and that’s where a trade mark attorney comes in. What are trade marks? on IP Australia’s site explains the basics.

What counts as use, and how much you need

IP Australia’s examiners look for use of the mark in Australia, in the course of trade, for the goods or services you claim. Their manual adds that “The extent of use of the trade mark is not a relevant factor.” A small business with modest but genuine, continuous sales can still show prior use.

What tends to matter is continuity. IP Australia says: “Use of the trade mark must be continuous, so show this with documentation such as invoices or annual sales figures.” And: “Exhibits that display dates can be particularly helpful for establishing continuity of use.”

If you can’t show prior use for some of the goods or services in an application, IP Australia may ask you to remove them. Its guide to providing evidence of use sets out what a declaration should cover.

Evidence checklist: what to keep and how often

Record	What it can show	Common weakness	How to strengthen it
Invoices and receipts	The mark used in a sale, with a date	Plain templates may not show the mark	Use a template with your logo or name, keep the originals
Annual sales figures	Use over a period	A summary, not an example of the mark	Keep the invoices or reports behind each figure
Photos of signage, packaging, products	How the mark looks in trade	Photo dates come from the device and can be changed	Keep the original files, note where and when, timestamp them
Website and social media captures	Public use online at a time	Easy to crop or edit; pages change	Full-page captures with the URL, plus archive copies
Ads, flyers, menus, price lists	Promotion under the mark	Often undated	Keep the print or booking invoice alongside
Supplier and customer emails	Trade under the name with third parties	Spread across inboxes	Export key threads each year

A simple routine:

Every month: save a few invoices showing the mark, a full-page capture of your homepage and main social profile, and a photo of any new signage or packaging.
Every year: save your annual sales figures and any new ad material.
Every time the mark changes: save the old and new versions side by side. IP Australia warns that if there are significant differences between the mark you use and the one you apply for, you may not be able to rely on that evidence.

Our guides to screenshot timestamping and the Wayback Machine as a record of a page show how to make web captures more useful. For the logo file itself, see dating a logo or vector file.

Making your records harder to doubt

Old records get questioned: “Was this invoice made later?” “Was this photo edited?” A few habits help.

Keep originals. Keep the original file, not a forwarded or re-saved copy.
Keep records other people hold. Bank deposits, supplier invoices and archive captures are dated by someone else.
Record when your own files existed. With TimeBinder^®, you TimeBind a monthly bundle of records and each file’s SHA-256 fingerprint is recorded on the Bitcoin blockchain. That shows each file existed no later than the recorded time. Your files are hashed in your browser and never uploaded, and one TimeBind can include up to 10 files. Later, you can check a file still matches its fingerprint.

A TimeBind works going forward. It can’t put an earlier date on records you already have; those rely on their own dates and on records held by others. See how a TimeBind works and the wider small business record routine.

There are two ways to TimeBind:

Pooled (1 Token): Your fingerprint is grouped with other users’ in one shared Bitcoin entry, usually recorded within 24 to 48 hours, and often sooner, depending on Bitcoin network activity. It’s verified through TimeBinder.
ASAP (3 Tokens): It gets its own Bitcoin transaction, sent straight away, and can be verified independently from the certificate and the Bitcoin blockchain.

The ASAP vs Pooled verification guide explains the difference.

What a TimeBind does NOT do

It doesn’t show who made the file, or that you own the trade mark.
It doesn’t show the contents are true, or that a sale really happened.
It doesn’t show whether AI was used.
It can’t say how IP Australia, a court or anyone else will judge it.

When to see a trade mark attorney

See a registered trade mark attorney or IP lawyer if:

you’ve received an examination report, opposition or letter about your mark
someone else has applied for or registered a similar mark
you’re deciding whether to register your own mark, and for which goods and services

Bring your evidence folder in date order. It makes the first conversation shorter. If you’re still at the idea stage, our guide on protecting a business idea in Australia covers that earlier step, and the Australian timestamping service page covers TimeBinder for Australian users.

When TimeBinder isn’t the right tool

You want exclusive rights to a name. Apply to register a trade mark with IP Australia.
You want to know if a mark is taken. Search IP Australia’s trade mark records.
Your evidence is all in the past. Old invoices and captures stand on their own dates; a TimeBind today only shows they existed by today.
You’re already in a dispute. Talk to a trade mark attorney first.

TimeBinder pricing

Free: $0. 1 Token a month.
Essential: $20 a month for 5 Tokens.
Expert: $50 a month for 15 Tokens.
Business: $149 a month for 60 Tokens.
Business Plus: $299 a month for 150 Tokens.
Enterprise: custom.

A paid plan replaces the Free plan’s Token. A Pooled TimeBind uses 1 Token and an ASAP TimeBind uses 3. Prices are in US dollars. Service terms for every plan are set out in the TimeBinder Terms and Conditions.

Frequently Asked Questions

What is prior use of a trade mark?

It means you used the mark in Australia, in trade, before someone else’s conflicting mark was filed, and kept using it. In IP Australia’s examination process, evidence of prior use can let an application go ahead despite an earlier similar mark.
Is registering my business name enough?

No. IP Australia says registering a business name doesn’t give you exclusive rights to it. A trade mark is a separate thing, registered or not.
Which dates matter most?

The date you first used the mark in Australia, the other mark’s priority date (usually its filing date) and the date you filed your own application. Your evidence should show use starting before the first of those and continuing until at least your filing date.
Do I need lots of sales to show prior use?

Not necessarily. IP Australia’s examiners’ manual says the extent of use is not a relevant factor; genuine, continuous use in trade during the period is what counts. Records that show dates through the whole period matter most.
Can screenshots of my old website help?

They can be useful exhibits if they show the mark and a date. Full-page captures with the URL, plus independent archive copies, are usually more useful than cropped images. Timestamping new captures shows they existed no later than a recorded time.
Does a timestamp show I own the trade mark?

No. It shows a file existed no later than the recorded time. It doesn’t show who made it, that its contents are true, or who owns the mark. That depends on your use and on how IP Australia or a court weighs your evidence.