Information for Corporate Clients
TRADE MARKS
1. What is a trade mark?
A trade mark is a sign which is used to distinguish goods or services from those of other traders. Typically, a trade mark will be in the form of a word or logo.
Colloquially a trade mark might be seen as a badge of origin identifying the goods and services of one trader over other traders trading in similar goods or services.
Australian trade mark law provides for the systematic recordal and organisation of trade mark rights so that traders may determine the scope of their trade mark rights and third parties may also determine the scope of the trade mark rights of registered trade mark owners. Further the trade mark registration system facilitates and eases the enforcement of trade mark rights when compared with the enforcement of common law rights.
Some examples of well known trade marks in Australia include:
- BILLABONG™
- QANTAS™
- MYER™
2. Registrable subject matter
Australian trade mark law permits a wide range of different trade marks to be registered. For example, a word mark may be registered in block capitals or in a stylised form.
Further a trade mark device or picture can also be registered. Yet further a logo comprising a combination of a device and a word mark, that may be stylised, may also be registered.
Further a shape of a container, that is distinctive of a certain trader’s goods or services, can also be registered. An example of this would be the distinctive COCA COLA bottle.
Technically, a particular colour that is distinctive of a trader’s goods or services can also be registered. However relatively few traders have been successful at registering a colour as a trade mark and an extremely large amount of use is required to do this.
3. Benefits of obtaining trade mark protection
A trade mark registration provides the registered owner with a monopoly right, that is, registration confers exclusive rights on the owner of the registration in a competitive marketplace.
Registered trade mark rights generally extend throughout Australia and protect the trade mark for all goods in respect of which the trade mark is registered.
Trade mark registration provides broader protection of the trade mark and protection extends throughout Australia. Registered rights are also far easier to enforce than common law trade mark rights. This is because the existence of reputation does not need to be proved and the infringement tests have been well developed by the Courts.
*Please refer to our brochure for more information on trade marks*
