A Trade Mark is a sign that distinguishes one business’s goods or services from those of another business.
The sign itself may be just a word or a few words, a symbol, a label, a colour or colours, a shape, a sound, a smell, or any two of these elements used together .
A registered trade mark can often become a business’s strongest and most valuable asset.
The reputation and goodwill associated with a Trade mark is what gives it value. And, a Trade mark can increase in value over time.
Is there any difference between trade mark protection and copyright protection?
Registration of a Trade mark gives the owner the legal rights to its exclusive use. The trade mark owner can also control the use of the trade mark in Australia. The asset value of a trade mark stays in force only if the trade mark owner uses it in the marketplace for the goods or services it is registered for.
Copyright is automatic. Copyright protects original works of art, literature, films, music, broadcasts and computer programs against copying and certain other uses. It protects the original expression of ideas, not the ideas themselves.
Are there any advantages of registering a trade mark?
Registering a trade mark is the main proof of ownership of the trade mark. If someone tries to use your registered trade mark then you can enforce your legal rights against them.
Can a business name also be a trade mark?
Yes, but only a registered trade mark can prevent any unauthorized use.
Can a domain name be trademarked?
If your domain name meets the requirements of the Trade Marks Act 1995 then it can be registered as a trade mark.
In Australia, who owns a trade mark?
The owner is the first person to use the trade mark or, if there is no use, the first person to apply for trade mark registration.
Can two entities have the same trade mark?
Yes but only as long as consumers would not be confused by it. In which case the trade mark of each would be registered in different classes or categories.
Can a trade mark owned by one business prevent use and registration of a similar trade mark by another business?
Yes, as long as it would not confuse the marketplace or is thought to be deceiving. Some trademarks may sound the same but are spelled differently – this would not be acceptable as it would be confusing.
How long is a trade mark registered for?
A trademark is registered for 10 years initially, and then renewed for a further 10 years indefinitely.
Is an Australian trade mark only of value in Australia?
Yes, although an Australian registration may provide a basis for foreign trade mark protection.
If a registered trade mark is never used what happens to it?
A trademark must be used in the marketplace for it to remain valid. If it’s not used for a continuous three-year period, then it can be removed from the Register for non-use.
How do I identify a trade mark?
A registered Trade Mark is identified by the symbol ®. An unregistered Trade Mark can use TM to identify that it is not registered.
If you would like to discuss trade mark registration, please get in touch.