A Trade Mark is a sign used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with by any other person. Trade Marks can be a letter, a word, a phrase, sound, smell, shape, logo, picture, aspect of packaging, or any combination of these. In order to have exclusive rights to a mark you must apply for registration. Once the Trade Mark is registered, you will have exclusive rights to that sign within Australia for an initial period of 10 years (which is renewable).
It is not a compulsory requirement for you to register a sign that you are using, and you may continue to use it without registration, provided that it does not infringe on other people’s rights. However registering your rights will mean that it will be much cheaper and quicker to stop others from using a mark similar to yours as well as preventing them from doing so in the first place.
Trade Marks are different from business names, company names and domain names. It is only with Trade Mark registration that you will have proprietary rights to that sign. Registering a business/company/domain name does not give you any advantages or automatic rights to a Trade Mark. This means that even if you have been using the same business name for a few years, if you have not registered it as a Trade Mark, a third party who registers the brand as a Trade Mark may be successful in forcing you to change your business name.
When applying for a Trade Mark, you will need to describe how you intend to use the mark and nominate a class from the 45 classes of goods and services. When your Trade Mark application is accepted you will have proprietary rights only with respect to the description you choose so it is important that you obtain professional advice to properly define your sign.
For example, you may wish to Trade Mark the name of an event that you hold called “Prime Debate Competition”. You may have registered the Trade Mark in class 41 (Entertainment; sporting and cultural activities) which means that you will be able to stop others from organising an event in that name. You may have made Tshirts with the same logo to promote the event. If you did not register the Trade Mark in class 25 (clothing, footwear, headgear) you will not have proprietary rights to the logo with respect to the T-shirt, which means that you will not be able to stop a third party from making Tshirts with a similar logo.
The Intellectual Property Lawyers at Prime Lawyers can assist you in:
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Researching and advising you on the prospects of your application being granted;
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Determining the class(es) and description of the trade mark;
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Apply for the trade mark, communicate with the case officer and respond to any adverse reports
If you require advice in applying for a Trade Mark or dealing with a Trade Mark dispute, call our intellectual property lawyers now on (02) 9521 2222. You can also send your enquiry online now and we will call you shortly.