Friday, July 15, 2011

What is a Trade Mark? IP Part 2

What is a trade mark?

A trade mark can be aletter, number, word, phrase, sound, smell, shape, logo, picture, aspect ofpackaging or any combination of these.

It is used to distinguishgoods and services of one trade from those of another. This means you can'tregister a trade mark that directly describes your goods (e.g. radios) andservices (e.g. electrician).

While it is difficult toregister a geographic name or surname, someone who has used one extensively inthe marketplace for a considerable period of time may be able to achieveregistration.

Youdon't have to register your trade mark to use it

However, registration isadvisable because it can be an expensive and time consuming exercise to takeaction under common law.

A registered trade markgives you the exclusive legal right to use, license or sell it within Australiafor the goods and services for which it is registered.

Always search existingtrade marks before using a mark or applying for registration. You may findyourself the subject of legal action if the mark you propose to use is alreadyregistered or in use by someone else.


Initial registration of atrade mark lasts for 10 years. After that time you can continue to renew yourregistration for successive periods of 10 years on payment of the appropriatefee.

A trade mark can thereforehave an infinite life representing significant business value. You must,however, use your mark in a bona fide way to avoid it becoming vulnerable toremoval on the grounds of non-use.

Whoadministers trade marks?

Applications should befiled with the Trade Marks Office of IP Australia. They will examine yourapplication to see if it meets legislative requirements.
You can learn more aboutthe trade marks process under the trade markssection of this website.

Also, there is protectionagainst misrepresentation under the trade practices or fair trading legislationand it is also possible to take action under common law.

Tune in next Friday for Part 3: What is a design?

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