What is a Trade Mark?
The word used to define a trade mark in Australian law is “sign”. This sign is used to indicate to consumers from which business the goods or services came. It is a badge of origin and quality.
For example, a Lindt chocolate often translates to a quality product from a trusted source, whereas a plain, no-name wrapper means something else in the eyes of the consumer.
A trade mark can be many things including a word, letter, name, phrase, colour, symbol, picture, signature, shape and even a scent or sound.
Traditional Trade Marks
Trade marks are things that you will all be familiar with. They include words and logos. Some well-known ones are:
- the word NIKE
- the NIKE “swoosh” logo
- the word “Coca-Cola”
- The Coca-Cola logo
- The word “McDonalds”
- The “golden arches” logo
To name just a few!
Commonly Asked Questions
Registering a business name is not enough to protect yourself. The best way to try and stop someone else from stealing your brand name is to register it as a trade mark.
No, a trade mark is “jurisdictional”. This means that it is basically granted on a country-by-country basis.
Yes. There is a procedure you can use called a “Madrid” application, which covers countries you can elect that are part of the Madrid protocol. There is also an “EU” application, which essentially covers countries that are part of the European Union. There are extra fees applicable for each country in which the application is filed.
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No. However, it can broadly be said that a trade mark registration is potentially perpetual as it can be renewed every ten years (for example the BONDS and Rosella trade marks have been registered in Australia since the 1960’s).
You can only use the ® symbol when the trade mark is registered and only in the country in which it is registered.
At all times. You can display it next to your trade mark even if you have not registered it, so long as you consider that you are using it as a brand.
In theory, yes. Especially if by mere coincidence they happened to be using the brand concurrently. An example is “Colorado” which is being used in Australia and registered as a trade mark for two different types of bags – upmarket elegant bags versus backpacks and travel bags.
Put simply, yes. The sooner you file for registration the better as your rights will ultimately take effect form that date.
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