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TRADE MARKS GUIDE EVERYTHING YOU NEED to KNOW ABOUT TRADE MARKS in AUSTRALIA Spruson.Com CONTENTS TRADE MARKS GUIDE EVERYTHING YOU NEED TO KNOW ABOUT TRADE MARKS IN AUSTRALIA spruson.com CONTENTS Introduction 4 What is a Trade Mark? 5 Trade Mark Selection 5 Trade Mark Registration 7 National vs. International 9 Trade Marks Trade Mark Use 10 Trade Mark Enforcement, 11 Protection & Management Trade Mark Assignments 13 & Licensing Business Names, Company Names 15 & Domain Names Trade Mark Checklist 17 TRADE MARKS GUIDE Welcome! Thank you for taking the time to pick up our Trade Marks Guide. The guide is intended to be fairly comprehensive, providing you with an understanding of the importance of trade marks, including the trade mark lifecycle, how to protect and use a trade mark and how to maximise the value of your trade mark. We hope it helps you to gain an understanding and appreciation of the nuances of trade marks and their place in the commercial world. We’ve included tips throughout the guide to help you along the way. A LITTLE ABOUT SPRUSON & FERGUSON Spruson & Ferguson’s Trade Marks team acts for a Spruson & Ferguson is a leading intellectual property (IP) diverse range of clients from the world’s leading brands firm providing a range of IP services throughout the Asia- to Australian start-ups. Our highly qualified trade mark Pacific region from our our Bangkok, Beijing, Brisbane, attorneys file more than 5,000 trade mark applications each Hong Kong, Jakarta, Kuala Lumpur, Melbourne, Singapore year and provide a comprehensive trade mark protection and Sydney offices. service across the Asia-Pacific region. We advise on all aspects of the trade mark lifecycle, including brand creation, With a combined team of over 400 people, including patent registering a trade mark in Australia and overseas, filing, all attorneys, trade mark attorneys and IP lawyers, Spruson aspects of trade mark prosecution, defending actions for & Ferguson is one of the only IP firms with true regional removal and monitoring correct trade mark usage. capability, knowledge and experience. SPECIALIST TEAM OF EST. TRADE MARK ATTORNEYS 5,000+ APPLICATIONS 1887 FILED EACH YEAR 4 spruson.com 5 SPRUSON & FERGUSON WHAT IS A TRADE MARK? Avoid: names of people or places, laudatory or descriptive words. For example, SYDNEY PHONES, BEST PHONES or Your trade mark is the face of your company. It is the MOBILES 4 SALE each fail the distinctiveness test. sign which differentiates your goods and services from your competitors. When selecting a trade mark, a business should be aiming to select one that it alone will be able to use. That way, no Consumers can easily identify the origin of goods or services other business will be able to benefit from the reputation that through trade marks, but more importantly, trade marks is accumulated within the trade mark. The more distinctive a accumulate goodwill and become a form of guarantee of trade mark, the more easily protected that trade mark will be. quality to a consumer. The best trade marks are invented, or at least have no meaning Terms like ‘brand value’, ‘brand recognition’ and ‘brand recall’ in relation to the goods or services to which it will be applied. are inextricably linked to trade marks. The most valuable and effective brands in the world are each underpinned by unique 2. A trade mark should be original. It should not be trade marks that have allowed consumers to easily identify similar to (and certainly not the same as) anything else the goods or services being offered and to attribute a level of being used by other traders in your field. quality or desirability to those goods or services. Avoid: adopting variations of other trade marks, mis-spellings A trade mark can be almost anything; a word, symbol, slogan, of common words, and fashionable words (e-, SMART-, or shape, sound, colour or even scent, as long as it differentiates a ECO-). For example, MIC-RON-SOFT and ECOSOFTWARE both business’s goods or services from those being offered by others. fail the originality test. Traditional trade marks are generally applied directly to When there is a world of possibilities, a business should not goods or packaging to make them stand-out and to allow limit itself, or expose itself to unnecessary risk, by selecting a consumers to easily identify the trade source. More recently, trade mark that other traders have already used. trade marks have evolved to include a much wider range of means of identifying the trade source. Clearance - Searching If used properly and managed effectively, a trade mark can Before taking a trade mark to market, a business should become one of the most valuable assets of a business. always conduct preliminary internet searches. If there are no obvious problems using the mark, you then need legal registrability searches to help ensure that: TRADE MARK SELECTION • The trade mark is not too similar to any other trade Given the potential value of a trade mark to a business, it is marks – using a trade mark that is similar to that of essential that the right one is selected.The benefits to a business another business risks exposure to legal and financial of selecting the right trade mark are boundless, including ramifications; an allegation of trade mark infringement, building an everlasting means of consumer recognition. breach of the Australian Consumer Law or of passing-off On the other hand, the cost of selecting, and ultimately using, • The trade mark selected is registrable – if the trade the wrong trade mark can be severe for a business. Not only will mark cannot be registered, it is much harder for a business the business bear the costs of a failed brand (brand development to protect its investment and implementation), it may also expose the business to legal Searching is not simple. Specialist searchers are employed action for infringement of another business’s trade mark or to ensure that not only are the exact combination of words reputation, which may result in having to pay damages. checked, but any potentially similar combination is also Creation - Two Key Rules TIP Select several potential trade marks for a new There are two key rules to keep in mind: product/service and have a professional search 1. A trade mark should be distinctive. A trade mark conducted in relation to each. That way the should not simply describe the goods or services business will be able to come to an informed to which it will be applied. decision around which trade mark to adopt for use. 4 spruson.com 5 TRADE MARKS GUIDE Generally, a plain word trade mark in BLOCK letters will provide the broadest protection. For example, the mark CASE STUDY would likely enjoy adequate coverage from a plain word trade A robust search is important mark registration for COCA COLA. However, the business may also have reasons for wanting to register the stylised When you’re looking to rebrand your business, there version, perhaps to build some protection around the specific are many things to consider, including making sure wave pattern or font used. your new brand can be registered as a trade mark in all the countries that you operate in. We worked with Protecting a trade mark should be as vital to a business as Australian online foreign exchange and payments protecting any other asset. A business owner is not likely to company OFX (previously known as OzForex) when leave their store unlocked overnight, or allow their machinery the company recently rebranded and expanded its to run to disrepair – that would simply be bad for business. reach into foreign markets. Because we act across Essentially, when a business is protecting its trade mark it is multiple regions, we understand there is not a one size protecting its reputation. It is preventing other businesses fits all approach to securing a trade mark in different from trading off the hard work that it has put in and the jurisdictions. We developed strategies to register and goodwill it has accrued. protect the OFX trade mark in Europe, Asia and the Under Australian law there are several ways to protect a trade South Pacific. mark, or the reputation of a business, including: • Action for trade mark infringement • Action for breach of the deceptive or misleading conduct provisions of the Australian Consumer Law • Action for ‘passing off’ under common law Each of the above is an effective means of protecting a checked. The test that a business must consider is not whether business’s trade mark and reputation. There are, however, its trade mark is identical, but whether it is ‘too similar’. some practical commercial differences between them that Having a team of experienced trade mark professionals are important. conduct a trade mark clearance search will provide your First, any action for a breach of the Australian Consumer business with ultimate peace-of-mind when it comes time to Law or for passing off must be supported through evidence take the trade mark to market. that the business has accrued a reputation in its trade mark. Obtaining registration of a trade mark is important but it That is, the business must prove that it has a certain level of is more important to be able to safely use the mark in the goodwill built up in its trade mark in order to succeed with marketplace. either of these actions. On the other hand, to pursue an action of trade mark infringement, there need not be any reputation in the trade WHICH TRADE MARK TO REGISTER mark at all. The only requirement is that there is a trade Usually, the first question for a business is which trade mark mark registration.
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