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What is a Trademark?
A trademark is any word, phrase, symbol, or design that ascertains and differentiates the source of goods or services of one trader from those of their competition. Registered trademarks come with the exclusive right to the use of that mark, as well as the right to take legal action against infringing parties. Registered trademarks are items of intellectual property and can be bought, sold, or licensed to third parties.
Types of marks can be as simple as a phrase, but can also include abstract notions such as images, scents, shapes, sounds, aspects of packaging, movements, or colours. It is unusual to trademark things such as scents, but possible under Australian law, provided that the mark in question is used to identify and distinguish the goods or services of a particular trader.
The term ‘service mark’ is used in the place of ‘trademark’ to refer to words, phrases, symbols, or designs that differentiate the source of a service rather than goods. Service mark, however, is a phrase that is not commonly used in Australian trademark law, as the term ‘trademark’ is accurate for both goods and services.
Registered trademarks provide exclusive protection for the registered trademark owner by granting the rights to use that mark to distinguish goods or services, or to permit other parties to license the mark in return for monetary compensation. Trademark protection lasts for a period of 10 years, and can be renewed indefinitely with the payment of timely fees. Trademark protection is enforced by IP Australia. IP Australia also determines which marks can and cannot be registered, and can remove marks that are unused from the trademark register.
Trademarks essentially promote initiative and enterprise on an international scale by providing registered trademark holders with recognition and financial profit as a result of associated goodwill. Trademark protection also prevents unfair competitors and counterfeiters from using confusingly similar or identical marks to sell their own goods or services. Trademark law allows traders with expertise and initiative to manufacture and advertise goods and services under the most level conditions: therefore, they enable international trade.
The system enables people with skill and enterprise to produce and market goods and services in the fairest possible conditions, thereby facilitating international trade.
Trademarks Eligible for Registration
Almost anything can be registered as a trademark, so long as it meets the basic categories for eligibility. Your trademark might be a word or a group of words, letters, or numbers. It might also be a graphic, symbol, shape, aspect of packaging, music or sound, scent, or colour that you use to distinguish your goods or services.
In addition, there are categories of specialist marks:
- Collective Marks: These are marks owned by associations whose members utilise the marks to identify themselves with an establish level of quality and any other requirements set as the association’s standards. For example, accountants, engineers, or architects can all be members of associations bearing collective marks.
- Certification Marks: These are marks awarded to products or services that comply with a defined set of standards, but are not members of the same group. These marks can be granted to any trader that proves that their products meet with established qualifications.
The first step in the registration process is to conduct a trademark search to identify any conflicting marks, such as those that are identical or similar to your own. Once you have identified these marks and made the appropriate changes, you must file an application with IP Australia. This application needs to include a reproduction of your proposed mark, including any colours, shapes, or three-dimensional elements. You must also specify the goods or services to which your trademark applies. To be eligible for registration, your trademark must fulfil certain conditions, including:
- The mark must be distinctive, so that it is recognisable to consumers as identifying a particular product and trade source
- It must not mislead or otherwise deceive consumers
- It must not contain elements of offence or scandal
- It cannot be the same as, or similar to, a mark already owned by another trader.
Protect Your Trademark
You can obtain trademark registration almost anywhere in the world. Each national or regional office manages a trade mark register. This register contains all relevant application information referring to registrations and renewals, including examinations, searches, and potential opposition from other traders. The level of trade mark protection you are granted by registration will vary between countries.
You can register for international registration or regional registration through IP Australia. IP Australia determines whether your mark is eligible for registration, and they also manage intellectual property law within Australia. You can file for multiple international registrations by filing via the Madrid Protocol. The Madrid Protocol contains a list of all of the countries that are members of the Madrid Union: in your application, you can nominate any number of these countries to be registered in.
Trademark registration in Australia lasts for a period of 10 years, and then can be renewed indefinitely. In order to protect your trademark, you must ensure that no other traders are attempting to register similar marks to your own. You must also prevent your mark being removed from the trade mark register for ‘non-use’ by constantly and consistently using your trade mark on all relevant business correspondence, business premises, packaging, marketing and advertising material, and even on the products themselves.
A trademark professional can help you better understand trademarks and their purpose. In addition, if you are seeking to protect your mark with registration, speak to one of our experts about conducting trademark searches and filing your application to give your trademark the best chance at achieving registration.