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What is a Trade
Mark?
A trade mark is a "sign" which is used
to distinguish the goods or services provided in
the course of trade from those of another. A "sign"
can consist of any letter, word, name, phrase, signature,
numeral, device, brand, label, aspect of packaging,
shape, colour, sound, scent, or combination of any
of these. |
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What is meant
by distinguish?
A proposed trade mark must be capable of distinguishing
the goods and services of the applicant from those
of other traders. Trade marks that would be difficult
to register are those that are ordinarily used to
indicate the kind, quality, quantity, intended purpose,
value, origin or some other characteristic that
other traders may wish to use to describe their
goods and services. |
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Why conduct a
search?
A search allows you to determine the availability
of a trade mark and identifies the existence of
identical, similar or possible conflicting trade
marks that may hinder your trade mark registration
or importantly infringe existing trade mark owners
rights. It is also crucial to conduct searches as
part of securing a business name as it may already
be in use in the market as a registered trademark.
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Why register
a trade mark?
A registered trade mark gives the registered owner
the exclusive right to use, license or sell a trade
mark within Australia for the goods and services
for which it is registered. Applying for the registration
of a trade mark means you are claiming ownership
rights that prevents other traders from infringing
your legal rights as the trade mark owner. |
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How long does
trade mark registration last?
A trade mark is initially registered for a period
of ten years and continues indefinitely as long
as the renewal fees are paid every ten years. This
adds to the commercial value of a registered trademark
as it is a perpetual asset of the business as long
as it is renewed as required. |
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Can I use the
® and ™ symbol?
You can use the ® (Registered symbol) next to
your trade mark once your trade mark is registered.
From this point, the ® should be used to support
the trademark in the marketplace and the legal rights
attached to it.
The ™ symbol (TM) is generally used prior to
registration to denote that a trademark application
is in place. It signals to the market and competitors
that the trademark is in active use ahead of its
official registration. |
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Does a business,
company or domain name registration have the same
rights as a trade mark registration?
Registration of a business, company or domain name
does not in itself give you any proprietary rights
- only a trade mark can give you that kind of protection.
The same word(s) may be registered by different
people as business names and trade marks. However,
the registered trade mark owner can sue the business
name owner for infringing the trade mark if the
business name owner uses it as a trade mark on goods
or services similar to those covered by the trade
mark registration.
It is therefore important when registering your
business name to first conduct a trade mark search
to establish that it does not infringe on someone
else's trade mark. |
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Is my Australian
trade mark registration valid overseas?
No. You need to seek protection in each country
according to the laws and conventions of that country,
although there are international agreements in place
which make it easier to obtain ownership rights.
In many countries, the first person to apply for
a trade mark registration becomes the proprietor
of that trade mark. It is therefore important that
trade mark searches be conducted in those countries
to determine if your use would infringe the rights
of an existing trade mark owner.
This search analysis is especially critical for
Australian companies wishing to export into key
markets such as the United States, the Eurozone
and Asia. |
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