A trade mark is traditionally perceived as a badge of origin, identifying the individual or business supplying the goods or services to which the mark is applied. However, a trade mark can also function as a mark of guarantee where goods or services bearing the mark can be expected to have the same consistency in standard or quality. A trade mark can also have advertising or promotional functions. Trade marks can be valuable not only to symbolise certain goods or services, they can also be used as a commodity. You can own, assign or license a trade mark to another individual or business just like other types of property.
A trade mark can be more than just a registrable intellectual property right. It can be used to create good will and reputation. A trade mark can help build your brand portfolio, create particular expectations and allow you to transfer the reputation attached to a particular trade mark across a product range. Your commercial interest is also a hallmark of this reputation, which is why it can be worthwhile for businesses to invest in protecting and registering their trade marks. A trade mark can be a name, image, logo, slogan, colour, smell, sound, shape (or a combination of these things) so long as it is capable of being distinctive in this manner.
How can I protect my trade mark?
A trade mark can be protected by registration with IP Australia if it meets statutory criteria and passes the examination process. As an owner of a registered trade mark, you have exclusive and legally enforceable rights to commercially use, licence or sell goods and services with that trade mark.
Generally, a trade mark can be registered if it is distinctive, does not conflict with a trade mark with earlier rights, and is not prohibited. When filing a trade mark application, you must also choose the classes of goods and/or services under which you would like to register your trade mark.
The process from trade mark application to registration is a seven-month process for a straight forward case. However, sometimes an application may be subject to an adverse report or opposition. An adverse report is the report issued by the trade mark examiner outlining reasons why he or she cannot accept a particular application. Opposition can occur during the advertisement period after examination, where a member of the public may lodge with IP Australia a formal objection to why a trade mark should not be registered.
If your trade mark application passes the examination process and opposition period, you can proceed with registration. Registration of a trade mark protects it for 10 years. At the end of this period, you can continuously renew your registration for an additional 10-year period.
Protecting and registering a trade mark is not always a simple task. Defending an adverse report or opposition can be a lengthy, complex and costly process, which is why it may be a good idea to engage an IP lawyer for assistance. An IP lawyer would be able to assist with assessing whether it is likely your trade mark may be subject to an adverse report, perform a conflict search, and provide other services that will ease your trade mark registration process. Our team of IP lawyers have extensive experience in this area and would be happy to assist. To speak with one of our IP lawyers today, contact LegalVision on 1300 544 755.