chapter 2

Trademark Registration

Trade–mark

Definition

A sign used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person.

—S. 17 Trade–marks Act

It differentiates your business and the quality of your products from those of your competitors. Your trademark carries your reputation with it, and reinforces long-term relationships with your buyers.

It's important to be aware of trademarks not only to protect your rights, but also to ensure that you’re not infringing on the rights of others when creating one.

IP Australia (IPA) is the agency responsible for registering and enforcing your rights as a mark holder. They're a resource you can access to gather information, ask questions, check the registry of current marks and begin the registration process.

Sign

Definition

Includes any combination of the following: any letter, word, name, signature, numeral, device, brand, heading, label, ticket, packaging, shape, colour, sound or scent.

—S. 6 Trade–marks Act

The Trade Marks Act is the federal legislation that broadly defines which marks can be protected by law, as well as outlining your rights as a trademark holder and how to enforce them.

Before registering your mark formally with the IPA, there are some factors to consider. First, check the IPA registry to make sure your mark is unique. This increases your chances of being approved.

There's no legal requirement for you to register your trademark, but there are benefits for your brand if you do. Registering your mark gives you the exclusive right to use it in Australia. In the event that someone does use your mark, it’s easier for you to take legal action because the registration is enough proof that you own the mark.

You Can Register

(i) A mark that is distinctive for the goods or services you provide.

(ii) Words, graphics or
a combination of both.

(iii) Deters others from using it.

(iv) Proof of ownership.

 

You Cannot Register

(i) A mark that is similar or deceptively similar to any previously filed trademark application or registration.

(ii) A mark using a word that other traders might need to use in their normal course of business.

An unregistered mark holder can only enforce their rights on the basis of "passing off," which is difficult and expensive to prove. A trademark is an asset to your business that is worth protecting, and registering your mark is the best way to do that.

Always remember that the law is fluid and subject to change. Although trademarks are an established area of the law, be sure to stay informed about the changes relevant to you and your business. The IPA is a good resource for keeping up to date and ensuring that your rights are maintained.

Registered

(i) Becomes property that can be sold or licensed.

(ii) Gives the holder exclusive rights.

(iii) Deters others from using it.

 

Unregistered

(i) Using your mark for extended time can provide rights.

(ii) More difficult and expensive to bring legal action.

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