We occasionally assist businesspeople seeking to apply for trademarks over holograms (which change depending on the angle from which they’re viewed), gestures and moving images. Although on the surface these signs appear to be more difficult to register due to their unusual nature, achieving trademark registration for these types of signs follows the same principles and requirements as all other trademarks. As always, the applicant trying to get trademark registration must clearly represent the trademark and show all of its features.

How to apply

When you apply for trademark registration, it is important that your application have a description of the trademark attached to it that highlights the primary features of the mark. It is then a requirement that some sort of moving visual representation (video) be attached that illustrates the desired mark. The more exact and defined the description of the hologram/movement mark, the more likely it will be accepted when you apply for trademark registration. Using positive terms, the trademark should be described as accurately as possible. What is actually happening in the movement trademark? What are the primary visuals/colours? Is it a sequence mark? In other words, there cannot be any confusion as to the trademark being claimed. Those looking at the application must know exactly what the parameters (scope and limitations) of the mark are, so that they can avoid trademark infringement. Here is an example of how the M&M Company described their movement mark: The trademark is the portrayal of the red coloured character as it appears in the video clip attached to the application form. The two-dimensional image of the character attached to the application form is a still of a scene from the video clip. The trademark does not include words or sound.

Holograms and Gestures

Getting trademark registration for holograms can be more difficult in that each new perspective or view of the hologram must have its own description and graphical representations. This is a very rare type of trademark and currently none exist in Australia. In the same vein, 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 trademark, and won’t be accepted by the trademark examiner.

Some prominent examples

Some recent examples of moving marks in Australia include M&M’s character animations, the Nokia handshake on its mobile opening introduction, and a Microsoft sequence mark.

Conclusion

Trademark registration is difficult to achieve when the mark itself is more unusual. In these instances, it is more advisable that you seek professional legal advice about how to successfully apply to register your trademark. Our team of trademark lawyers are very experienced in this field and have come across some very unusual marks in the past. For a free quote, contact LegalVision on 1300 544 755.

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.
Daniel Smith

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