Skip to main content

Trade Marks in Australia

Trade marks in Australia are governed by the Trade Marks Act 1995 and administered by the Australian Trade Marks Office (ATMO). The ATMO is responsible for registering and examining trade mark applications, as well as maintaining the trade mark register and enforcing trade mark rights.

To be eligible for registration in Australia, a trade mark must be capable of distinguishing the goods or services of one trader from those of another. This means that the mark must not be too similar to existing trade marks and must not be descriptive or common words or symbols. Trade marks can take many forms, including words, logos, and even sounds or smells.

The process of registering a trade mark in Australia typically involves conducting a search of existing trade marks to ensure that the proposed mark is not too similar to any existing marks. This can be done through the ATMO's online trade mark search service. Once the search is complete, the applicant can then file a trade mark application with the ATMO. The application is then examined by an ATMO examiner to ensure that it meets the requirements for registration. If the application is accepted, it is then published in the Official Journal of Trade Marks for opposition purposes. After the opposition period, if no one has opposed the application, the trade mark will be registered.

Once a trade mark is registered in Australia, it is protected for a period of 10 years and can be renewed indefinitely as long as it is still in use. Registered trade marks can be licensed or sold to others for use in the marketplace and can also be used to prevent others from using similar marks that could cause confusion among consumers. However, trade marks can also be the subject of disputes and legal challenges, particularly if they are similar to existing marks or if they are used in a way that is considered to be misleading or deceptive.

It's important to note that Australia also recognizes the registration of trademarks through the Madrid Protocol, which allows for the registration of trademarks in multiple countries through a single application process. This allows for more efficient trade mark protection and enforcement on a global scale.

Enforcement of trade mark rights in Australia is done through the courts, with the Federal Court of Australia having jurisdiction over trade mark matters. Infringement of a trade mark occurs when a person uses a trade mark, or a similar mark, in relation to goods or services that are identical or similar to those for which the trade mark is registered without the consent of the trade mark owner. Remedies for infringement can include an injunction to stop the infringement, damages, or an account of profits.

Cancellation of a trade mark registration in Australia can also occur if a trade mark becomes a common name in the trade, or if it becomes misleading or deceptive. Additionally, a trade mark can be removed from the register if it is not being used, or if the trade mark owner has not used it for a continuous period of 3 years.

In conclusion, trade marks in Australia are governed by the Trade Marks Act 1995 and administered by the Australian Trade Marks Office. The registration process involves conducting a search of existing trade marks, filing an application, examination, opposition period and registration. Once registered, trade marks are protected for a period of 10 years and can be renewed indefinitely as long as it is still in use. Infringements and disputes can be handled through the courts, and trade marks can be cancelled if they become a common name in the trade, misleading or deceptive, not in use or if the trade mark owner has not used it for a continuous period of 3 years. Australia also recognizes trade mark registration through the Madrid Protocol.


 

Comments

Post a Comment

Popular posts from this blog

OFF-BRAND - How a high-fashion brand and a local ice cream shop have come to blows over intellectual property

OFF-BRAND  How a high-fashion brand and an ice cream shop have come to blows over intellectual property In the various industries that are out there, not too many are as different as fashion and ice cream. One is involved in providing happiness, comfort and everything nice in this world and that other provides a sharp reminder that maybe that extra scoop of ice cream was too much. But suffice to say, a rift between the two industries is not something that you would expect to find.  But as hype culture and the obsessive fandom on the internet have grown, the industries have been growing closer and closer together. But sadly, not in the way you think, we are still a few years off wearable ice cream. Instead, there is now a good chance that your local ice creamery sells merchandise. Less impressive, for sure. But this has become a staple for restaurants with even just a modicum of goodwill attached to their name and why not? If customers are willing to pay an extra $50 so that people will
Post a Comment
Read more

NEVER Read the Comments!

The Federal Court this week delivered their judgement on  Australian Competition and Consumer Commission v Service Seeking Pty Ltd  [2020] FCA 1040 going all out by handing out whopping fines, legal costs orders and ordering Service Seeking Pty Ltd to establish a, undoubtedly expensive, compliance system to be monitored by the Australian Competition and Consumer Commission (ACCC).  What did they do that was so bad?  According to the Federal Court of Australia, they created a system in which businesses could write their own customer reviews.  With a rating system less defined than what constitutes a 5-star rating in an Uber trip, businesses could write a review, assign a star rating and send it off to their customer for approval. If the customer didn’t respond or even open the email containing the review, then the review was automatically published online after a set period. By estimates of the Court, approximately 80% of the reviews published on the website for the period that this sch
Post a Comment
Read more

What are Trademark Classes

  What are Trademark Classes When you are registering a trademark, it is essential to think about what the kind of classes of object/services you want your trademark to apply to. The World Intellectual Property Organization (WIPO) has designated 45 classes in which you can register a trademark. Classes 1-34 are for goods that you may produce (like food or technology) and classes 35-45 are for services (like legal or medical services). This is known as the Nice International Classification of Goods and Services and has been the method of classifying what areas a trademark is registered in over 85 countries, including Australia.  How to pick a class? When you a completing a trademark application, you must determine precisely what bounds you wish you apply to your trademark. An application for a trademark is likely to be rejected if you set the bounds to be too big and ineffective if you set the bounds to be too small. There is a sweet spot which you must find. But it is essential to kee
Post a Comment
Read more