Can I Register Holograms, Gestures or Movements as a Trade Mark?

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Table of Contents

• Trade Mark Application Process
• Holograms and Gestures
• Key Takeaways

Trade marks are a form of protection used in Australia to distinguish goods or services in the market. Typically, they have been associated with words, logos, or a combination of both. However, the range of registerable trade marks has expanded to include non-traditional marks, such as holograms, gestures, and moving images. Because these signs may be more difficult to register, it is important that you, as a potential applicant, understand the key principles behind trade mark registration. This article will explain how the key trade mark application requirements apply to gesture, movement and hologram trade marks.

Trade Mark Application Process

In Australia, all trade mark registrations are processed by IP Australia. When you apply, part of the filing requirements is that you submit a description of the mark, or an endorsement. This description should describe your mark’s primary features. There must also be some sort of moving visual representation, like a video, that illustrates your mark. The more exact the description, the more likely it will be accepted when you apply for trade mark registration. 

When describing your mark, you are also looking to ‘endorse’ it as something unique. As a result, aim to use positive terms whilst describing as accurately and in as much detail as possible. Some key questions you should ask yourself when describing are: 

• What is actually happening in the movement trade mark? 
• What are the primary visuals/colours? 
• Is it a sequence mark?

This ensures that there cannot be any confusion as to whether the trade mark already exists or is claimed. Those looking at the application must know exactly what the parameters (scope and limitations) of the mark are so that they can avoid trade mark infringement.

Trade Mark Essentials

This guide explains the essentials of trade marks and the steps required to register a trade mark.

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Examples of Endorsements

The table below shows two examples of trade mark descriptions you can use as a reference when making your own application. 

Holograms and Gestures

A hologram is essentially a three-dimensional image that transforms its appearance based on the angle you view it at. The creation of visual images using holograms involves the use of a physical, flat structure that bends light to produce stunning visual effects. Various industries, such as entertainment, security and product packaging, use this technology to enhance their products’ visual appeal and prevent counterfeits. As such, you may apply for a hologram trade mark if your may is unique and utilises these advanced holographic characteristics. 

Obtaining registration for hologram trade marks can be more difficult. This is because each new perspective or view of the hologram must have its own description and graphical representations. Indeed, they are a very rare type of trade mark, and currently, no hologram marks exist in Australia. Similarly, gesture marks need to be claimed by providing a very exact and clear, unambiguous description of the particular gesture, as well as representations to describe the breadth of the gesture. 

With these unusual marks, clear expression is key. Phrases like “as exemplified in” or “an example of which” are not precisely defining the trade mark. Therefore, the trade mark examiner is unlikely to accept them.

Key Takeaways

Trade mark protection can help you grow your brand, but registration is difficult to achieve with unusual marks. These unusual marks include holograms, gestures or movements. You may not be successful if you do not take steps to clearly distinguish your mark, even if you comply with formality requirements and the relevant legislation. However, your chances of success are more likely if you comply with the minimum filing requirements during the application process. In particular, you should provide an effective endorsement that uses positive language and accurately describes your mark. When applying, ensure you outline and explain your mark’s key features, as well as provide a visual representation of it. 

If you have further questions about gesture, movement or hologram trade marks, contact our experienced trade mark lawyers as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.