WHAT IS A TRADE MARK?

So your product and your company needs a logo, what do you use? 
You get a Trade Mark! 

But what is a Trade Mark

TL;DR? Watch the YouTube explanation!


Since I'm in Australia, this is the Australian definition for Trade Marks law. The statutory definition of 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 or provided by any other person."

It very specifically uses the term 'a sign', as opposed to 'a mark', so what is a sign? 

Well, a sign is defined in the act as:
"a sign includes the following or any combination of the following, namely any letter, word, name signature, numeral, device, brand, heading, label, ticket, aspect of packaging, shape, colour, sound or scent"

Now for the majority of these you are best off trying to make a combination.registering something that is solely one thing isn't always the easiest thing to do. For example a letter is going to be incredibly hard, a colour is going to be incredibly hard, you have to have some sort of distinctive feature.

Classes of Trade Marks?

Your trade mark is going to be registered under a certain class. Now there are quite a few classes of trade marks, I believe there are 34 classes of goods, and 11 classes of services. So out of these 34 different classes of goods, and 11 classes of services, your trade mark needs to fall within 1 or more of them.

What rights?

By registering a trade mark you're getting the rights to use this trade mark, namely the 2 rights are to use the trade mark and to authorise other persons to use the trade mark. And you also get the right to relief if someone infringes on your trade mark, under the act.

So a trade mark to you is a sign of some sort, but in the eyes of the law, what is a trade mark? Well, in the eyes of the law a trade mark is something that is written down in a register, it's something that they have got registered in a system somewhere. And in the eyes of the law, this trade mark is your personal property. You can deal with it how you would deal with other personal property. In section 21 it says "Equities in respect of a registered trade mark may be enforced in the same way as equities in respect to any other personal property", so you can treat this as your own personal property. You can sell it, give it to someone in your will, you can mortgage it, you can do whatever you want with it.

What should I watch out for?

One thing to watch out for is that your sign or trade mark isn't too descriptive of what the application is for this, what's being trade marked. For example if you're trying to trade mark a logo or a bottle, your trade mark can't be a bottle. If you're trying to get a trade mark for a brand of shoes, your trade mark can't, or it's very hard to get, a trade mark of a shoe or of the sole of a foot or something, it needs to have some sort of distinctive element, some sort of, especially something artistic is excellent!

Another thing to make note of is when you are getting an application for a trade mark, you don't have to get an application for every single little variation of that trade mark, small variations can still be accepted as that trade mark, for instance if you want a black and white version of a colour trade mark, that's generally accepted that's fine. What happens if you photocopy on a black and white photocopier your colour trade mark, it comes out black and white but it's still your trade mark.

Now another pretty big one, I would think is that with your trade mark there needs to be proof of use or intent to use, or assignment or an intent to assign use. This means that you need to prove that your trade mark will be used by someone in some way, controlled by you.What this is trying to prevent is for people to pick up trade marks that they don't intend to use, just so that they can block someone else from getting that trade mark.

Invent, innovate, and create your ideas into reality - InnovAU.


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