Australian Trade Mark Law is based on the use of common-law rights, as well as the Trade Marks Act 1995. In order to protect your rights, or stay on the legal side, you need to understand what the law entails.
What is a trademark and its purpose?
A trademark is a “sign” which contains one of the following or their combination: letters, numbers, shapes, colors, scents words, signatures, devices, brands, labels, headings, tickets, or packaging. It has to be unique and distinguishable. The purpose of it is to ensure that its owner has exclusive rights to its use and authorization of others for the use of the same, protect from infringement, and create a valuable asset.
There are certain elements which require a special permission in order to be used as a part of a trademark, and which on its own merits could indicate a particular trait of goods or services. For example, you cannot use the word “bank”, unless you are an actual bank of a kind.
What is not or cannot be a trademark?
Signs which are common and in no way distinguishable cannot be registered as trademarks. For example, a word “water” on its own is not distinct enough. One of the major issues that could arise from allowing the registration of such sign would be the limitation imposed on others, and the inevitable prospect of infringements at every corner.
Furthermore, some things are assumed to be trademarks, but are not, unless specifically registered as such. These include business names, domain names, and designs. A design can be protected but under a different provision.
What are unregistered trademarks?
If a recognizable sign hasn’t been registered under Australian law, it still enjoys some protection under the Australian Consumer Law. It protects consumers by prohibiting any deceptive or misleading conduct in trade, as well as, any misleading and false representation in respect to goods or services. In order to prove such infringement, a business would first have to prove the reputation of the sign, as well as the awareness of it, through set criteria.
When can one talk about infringement?
There are 3 instances when we can consider that there is a case of infringement. The first one is when there is another sign in use which is deceptively similar or substantially identical to a registered trademark. The second line of infringement is when such similar trademark is used with respect to the same goods or services as those covered under the original trademark. Finally, the third line of infringement extends to include the goods or services which are of similar description, or closely related to those of the original trademark, and thus likely to cause confusion.
Trademark dispute lawyers remind us that the new age has brought additional ways someone can abuse your registered trademark and even use it against you. Meta tags as keywords or descriptions are used to provide a search engine with relevant information about a website. They play a significant role in website search-engine rankings. It has been discovered, that third-party trademarks have been used in Meta tags. Even though they cannot be seen by website visitors, they are a part of marketing strategies and communication with search engines. This way, a business behind the website in question uses deception for personal gain.
What is parallel importation?
Parallel importation can constitute a specific form of trademark infringement and thus deserves a paragraph in this article. The parallel importation refers to the importation of branded goods by a third party into Australia with an intention of promoting them, distributing, or offering for sale. The goods are meant to be branded by the trademark (registered under Australian law and present in Australia) owner or an authorized licensee overseas and when this is the case, there is no infringement. However, if this is not the case, the third party will be found guilty under the Trade Marks Act.
When is there no infringement?
Certain trademark dispute instances are dismissed as they are fulfilling the Good faith requirement which basically means that you haven’t acted with the attention of harming, deceiving, or misleading anyone in the process. Some of these exceptions are using your own name, descriptive use (similar to the aforementioned example of the word “water”), intended purpose (you can use a trademark if it constitutes a part of a description e.g. if your produce tires for Ford vehicles).
Your trademark may have been a catchy phrase, or a nice image at first, however, since you’ve started using it, it has become so much more. At this point, a trademark represents your business and your good reputation. The infringement would mean that someone else is trying to use your hard work for quick gain, and possibly even ruin that which you have been trying to build for years. Don’t take things for granted and rely on the good faith of others, but register your trademark and protect your business.