Trademarks

Be Distinguished

Trademarks are used to signify that products or services originate from a particular person or company.

A trademark usually signifies that the product or service is of a particular standard of quality & can consist of word(s), numbers, a logo or a combination of these. A trademark may even be a three dimensional shape, a sound or a smell (although these are more difficult to register).

A trademark can be a letter, word, phrase, sound, smell, shape, logo, picture, aspect of packaging or combination of these. It identifies a product or a service, distinguishing them from other similar products or services. more...

Registration of the trademark gives the owner legal rights to exclusively use or control the use of the trademark for the goods or services for which it is registered. Registration is obtained under the Trade Marks Act 1995 & covers the whole of Australia.

What's in a Name?

Choosing the right name for your new business, company, product or Internet domain name is vital to distinguish your goods & services from competitors. You are creating an identity - something memorable & meaningful.

Business, company names & domain names are best protected when they are registered as trademarks. If your new name is identical or similar to another person’s registered trademark, you could be sued for infringement.

In the market place, names can be trademarks, business names, company names & domain names. This can be very confusing so it’s important to know the difference.

Company name	Business name	Domain name
Or registrable body must be registered with the Australian Securities & Investment Commission. If a company wishes to trade using a name other than its registered company name, it must register that trading name as a business name. Unlike trade marks, company names do not necessarily provide proprietary rights for the use of the trading name.	Is the name under which a business operates & registration identifies the owners of that business. Registration is compulsory, in every state & territory from which a business operates, and must be completed before the business starts trading. Unlike trade marks, business names do not necessarily provide proprietary rights for the use of the trading name.	Is a site address on the Internet. ‘Internet Names WorldWide’ (www.internet namesww.com) administers the registration of com.au domain names. Before registering your domain name a search of company name, business name & trade mark databases are conducted for possible infringement. An Internet name must be a registered Australian/New Zealand commercial entity & derived from your business or company name.

Trademarks: General

In Australia, the owner of a trade mark is the first person to use the trade mark in Australia, or in the absence of any use, the first person to apply for trade mark registration with a bona fide intent to use the trade mark in the future.

Use of a trade mark in an unregistered form results in the creation of a reputation in the trade mark that can be protected by "passing off", the Trade Practices Act, or the various State Fair Trading Acts. In each instance, it is generally necessary for the user of the trade mark to prove reputation & relief will generally only be granted in the territory in which the trade mark is actually used.

The Australian Trademark Office does not investigate unregistered trade marks when assessing a trade mark application for suitability for registration. The Trademark Office will only search through earlier trade mark applications & registrations. Thus, a Trademark Office search is not conclusive of an applicant's rights in the trademark.

Registration Rights

Registration of a trademark (as opposed to use of an unregistered trademark) offers many advantages. Enforcement of the trade mark is simplified by doing away with the requirement to prove reputation. If the registration is Australia-wide, the registered owner is able to prevent an unauthorised later user from using the registered trade mark on the class of goods/services for which the trade mark is registered anywhere in Australia irrespective of where the owner is actually using the trade mark.

The registered owner is able to obtain an injunction and damages or an account of profits for any successful infringement proceedings.

The owner of a registered trade mark cannot stop use of the trade mark by any person who has used the trade mark before the use of the trade mark by the owner or before the filing date of the registered trade mark (whichever is the earlier).

A big advantage of a trade mark is that it can go on forever providing that registration is maintained through renewals. Once registered however, the trade mark must be used in trading within 3 years or your ownership can be cancelled

A name may be registered as both a business name & a trademark.

You should choose a trade mark that is easily registered so that registration can be obtained quickly & with minimum cost.

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