IP Flourish assists clients and associates with trade mark protection in Australia, New Zealand, and throughout the world.
We offer fixed price options for filing and prosecution of trade mark applications locally in Australia and New Zealand.
We also offer discounted filing charges for multiple concurrent applications, and for concurrent applications for the same mark in Australia and New Zealand.
For further information or advice, call +617 3177 3365 or book a free consultation.
FREQUENTLY ASKED QUESTIONS
What is a Registered Trade Mark?
A trade mark is a sign that is used, or intended to be used, to indicate the trade origin of a good or service.
A registered trade mark in a given jurisdiction provides the owner of the trade mark with exclusive rights in relation to the commercial use of the trade mark as part of branding in that jurisdiction. Trade mark registration is typically renewable indefinitely, in ten-year terms.
It is important to understand that registration of a trade mark is separate and different from registration of a business name and ownership of a domain name (see further information below).
Examples of Registered Trade Marks
Words and logos are commonly registered as trade marks. It is also possible to obtain trade mark protection for a variety of other signs associated with a brand, including shape, sound, and even smell.
Under Australian law, the following are positively defined as types of signs that can act as a trade mark:
- aspects of packaging
Registered Versus Unregistered Trade Marks
In some jurisdictions, including Australia, it is possible to accumulate certain unregistered trade mark rights through use.
It is important to understand, however, that it is generally much more difficult and costly to stop a competitor from using (or even registering) a trade mark for which unregistered rights have accumulated, as compared to the scenario where trade mark registration has been obtained.
It is also important to be aware that, while the ™ symbol can be used without registration to indicate that a sign is intended to be a trade mark, it is an offence in Australia to use the ® symbol unless Australian registration of the trade mark for the labelled goods or services has been achieved.
Why Apply for Registration of a Trade Mark in Australia?
As noted above, trade mark registration provides exclusive legal rights in relation to commercial use of a trade mark. These legal rights can be very powerful as part of branding strategy.
Enforcement of rights obtained by trade mark registration is typically much less complex than attempts to enforce unregistered trade mark rights. Registration also provides an official record of trade mark rights, facilitating commercial dealings (such as sale or licensing) of the mark.
Additionally, registration of a trade mark will typically provide a significant barrier for later registration by other parties of similar (or the same) trade marks for similar (or the same) goods or services. Conversely, where a competitor obtains registration for the same or similar mark as an unregistered trade mark, it will generally be complex and costly to dispute this without any guarantee of a successful outcome.
Commercial Use of Australian Trade marks
In many jurisdictions, including Australia, ongoing commercial use of a registered trade mark is required to ensure validity.
Australian trade mark owners should be aware that a registered Australian trade mark can be susceptible to removal if not used for a period of three consecutive years after registration.
Trade Marks for Australian Business or Company names?
A common misconception is that business name registration or domain name ownership is the same as, or corresponds to, trade mark registration.
In fact, registration of an Australian business name or company name is performed through ASIC (Australian Securities and Investments Commission) and is a distinct process that does not inherently provide trade mark rights. Neither does registration of a trade mark for a name prevent another party from registering the same or a similar name as a business or company name.
Similar considerations apply in relation to domain names. Purchase of a domain name does not inherently provide trade mark rights for the domain name and, likewise, obtaining trade mark registration does not bar others from purchasing a domain name that is the same as or similar to the trade mark.
Generally, trade mark applicants should be aware that trade mark registration, business and company name registration, and domain name ownership, are separate (albeit related) considerations.
Registered Trade Marks vs Registered Design
A registered trade mark differs to a registered design. Broadly, trade mark registration is intended to provide exclusive branding rights, whereas registered design protection is intended to provide exclusive rights in the particular visual appearance of a commercial product.
Different criteria apply for registration and enforcement of registered trade mark rights and registered design rights.
Learn more about Registered Designs here.
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Contact us today for expert guidance on protecting the intellectual property of your business, product or idea.
Call +617 3177 3365 or book a free consultation.