What is a Trademark?
- Do you ever ask yourself “what is a trademark?”
- A trademark is a distinguishable sign, design, graphic, or phrase that identifies the goods or services of a particular trader from those of others.
- A trademark can belong to an individual trader, business, company, organisation, or any other legal entity.
- Trademarks are used on packaging, labels, vouchers, vehicles, products, or marketing material.
- Trademark owners may also choose to include their marks on business correspondence or on business premises to establish or reinforce their corporate identity.
What is a Trademark? A trademark is usually a name, word, phrase, logo, symbol, design, image, or some combination of these elements. There are a number of unconventional marks that can be trademarked under Australian law, such as distinctive sounds, shapes, colours, smells, plant names, or wine labels. These marks are difficult to register, as you must provide plenty of supporting evidence to prove that your unconventional mark is consistently used to distinguish your goods or services, and that the mark is truly unique.
The term ‘trademark’ can also be informally used to identify a recognisable attribute by which a trader is distinguished by consumers: for example, well-known characteristics of famous people.
If a trademark is used to association with services rather than goods, it is sometimes called a service mark. This is a term seldom used in Australian trademark law, as trademark is an adequate term for the marks distinguishing both goods and services.
What is a Trademark? Trademarks are intellectual property used to advertise exclusive properties of goods or services. You would use a registered trademark to claim the right to inflict legal ramifications against those who infringe on their intellectual property rights. Registered trademarks can be bought, sold, or licensed to other traders. For example, a company might license franchisors to use their trademarks for the purpose of marketing and advertising. Many toy suppliers are also licensees:
- The Lego Group purchased a license from Lucasfilm for the purpose of launching Lego Star Wars
- Bullyland purchased a license in order to start producing Smurf figures.
What is a Trademark? The use of a trademark must always be authorised by its owner. Traders using trademarks without the permission of the trademark owner are trading counterfeit consumer goods. This is known as brand piracy. Trademark owners are entitled to take legal action against those using their marks without authorisation.
Trademark registration is important, because only a registered trademark holder has the ability to take legal action against infringers. In Australia, there is limited protection for traders relying on common law trademark rights: generally, though, Australian trademark law relies on a ‘first-to-file’ basis, meaning that the trader who files for registration first is the most likely to be granted ownership of that mark.
What is a trademark? Trademark Symbols
You can recognise different types of trademarks by the symbols designated to them:
- The trademark symbol, ™, which can be used on unregistered trademarks when they are being used to promote goods
- The service mark symbol, SM, which is used to distinguish unregistered service marks
- The ® symbol, used only to identify registered trademarks
It is unlawful to use the ® symbol without first registering your trademark. The ® symbol is used to distinguish registered trademark holders only: it advertises their status as protected trademark holders and states their right to take legal action against infringers.
What is a Trademark? The primary function of a trademark is to singly identify the trader as a source or origin of specific goods or services. Thus a trademark indicates a source or acts as a badge of origin. Trademarks are basically used to distinguish a specific business as the source of goods or services. Trademark registration grants certain exclusive rights to the trademark holder. These rights can be enforced through legal action against trademark infringement. An unregistered trademark receives limited protection through common law.
Trademark rights are generally granted to the trader who uses the mark in question to distinguish their goods or services consistently over an extended period of time, assuming that there are no objections by other traders.
In a trademark application, you must specify the types of goods or services that your trademark identifies. All goods and services are classified according to the International Nice Classification of Goods and Services. The Nice Classification breaks down all goods and services into 45 different classes. The purpose of this system is to identify and limit the extension of each trader’s intellectual property rights by understanding the specific goods and services related to the mark, and to unify classification systems internationally.
What is a trademark? Trademark Terminology
What is a Trademark? There are a number of terms used interchangeably with ‘trademark’: these include ‘mark’, ‘brand’, and ‘logo’. The term ‘trademark’ is inclusive of all devices, brands, labels, names, signatures, words, letters, numbers, shapes, packaging, colours, scents, sounds, movements, or any combination of these used to identify the goods or services of a specific trader from those of their competition. A trademark must be able to be represented in graphic form and must be applied to the goods or services for which it is registered.
There are a number of specialist types of trademarks, including:
- Certification marks
- Collective trademarks
- Defensive trademarks
What is a Trademark? Trademarks that are commonly used by consumers to describe a product or a service, instead of to identify those products or services as coming from a trading source, are referred to as ‘generic trademarks’. Once a mark has become synonymous with a product or service, the owner of that mark is no longer able to enforce their intellectual property rights, and the mark becomes generic and ineligible for registration.