As a business, your intellectual property, including your trade mark is an important asset that requires monitoring. It is important to monitor trade mark infringement to protect your business’ intellectual property. Doing so allows you to maximise your benefits under the Trade Marks Act 1995. Registering a trade mark entitles you to rights in controlling the use of the trade mark as a marketing tool for your business. It also provides you with rights to authorise others to use it and take action against others if they copy or use your trade mark without your permission.
After registering your trade mark, it is important to monitor trade mark infringement by searching for identical or similar trade marks. You can monitor the marketplace by performing searches. Search engines like Google are a useful starting point in searching for possibly infringing use of your trade mark. Using search engines ensures your search covers unregistered businesses and the online marketplace. Publicly accessible databases such as the one provided by the Australian Securities Investment Commission (ASIC) and the Australian Trade Mark Online Search System (ATMOSS) maintained by IP Australia are valuable resources for a more comprehensive search.
Search engines are a great starting point when performing trade mark monitoring searches. They provide you with access to the online public domain. Simply using Google to search identical or similar words as well as images identical or similar to your trade mark can help determine whether someone has infringed your trade mark.
Google Alerts, is a cost effective way of keeping updated on whether others are using your trade mark without your authorisation. You can choose categories and specific terms to search, such as your trade mark and similar words or phrases. Google then emails you alerts of when your search terms appear in the top Google search results.
Australian Securities Investment Commission (ASIC)
ASIC manages and administers the registration and renewals of business names throughout Australia. Their online database service provides you with the opportunity to search businesses in Australia and information on organisations and companies. This provides you with a basic insight into whether others are using your trade mark in their business name.
Australian Trade Mark Online Search System (ATMOSS)
New trade mark applications and registrations are all listed on IP Australia’s publicly accessible database called the Australian Trade Mark Online Search System (ATMOSS). IP Australia examines and administers intellectual property rights, but does not enforce trade mark rights. It is your responsibility on behalf of your business to monitor the market for trade mark infringement and enforce your rights.
Searching ATMOSS gives you an indication whether an existing application or registered trade mark is similar to yours and the goods or services they are providing. ATMOSS provides you with the name, contact details of the person or business that applied to register the trademark. You also have access to information on filing, and acceptance dates, opposition period and the status of the application. ATMOSS allows you to customise and retain your searches for up to 20 days.
Enforcing your rights
A registered trade mark owner acquires rights in relation to their trade mark. As a registered trade mark owner, you will be able to take action against others who infringe your trade mark rights. Before you take any action, you must first prove that infringement has occurred. Proving infringement may be complicated. It is advisable to seek professional advice when determining whether or not an infringement has occurred.
As the owner of a registered trade mark, you are responsible for protecting the intellectual property of your business. IP Australia administers intellectual property rights, however it is your responsibility to enforce such rights. It is, therefore, important that you monitor the market for trade mark infringement. You can monitor trade mark infringement through search engines like Google, and more comprehensively through databases like ATMOSS and ASIC. Performing such searches enables you to take action and enforce your rights if you find that there is an infringement of your trade mark. When determining what constitutes infringement and before you enforce your rights, it is recommended that you contact one of our IP lawyers.
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