Trade mark protection affords various rights to the owner of the trade mark that are common to intellectual property. This may include the ability to exclusively use the trade mark in connection with your business activity, the ability to transfer or licence your trade mark, and the ability to enforce your rights against other parties in the instance of an infringement. However, there are certain limitations to trade mark protection and it is important to be aware of them to manage your trade mark properly.

Duration of protection

A trade mark registration lasts for the initial period of 10 years from the date of application. Although there is this initial period, you are able to renew the trade mark every 10 years so long as you are still using the trade mark according to your original business activity.

Actions for removal

A registered trade mark may be able to be removed if another party brings forward an application for removal. Some common legal arguments to get a registered trade mark removed could include those relating to non-use or those relating to generic use. Non-use refers to trade marks that have not been used for the period of three years or if the original application was lodged with no intention to actually use the trade mark at all. Generic use, on the other hand, refers to a trade mark that has become so commonly known to describe your good or service that it no longer works to distinguish your business.

Infringement

Like other forms of intellectual property, it is left in your hands to protect your rights. This means that if you find someone who is using your sign and infringing your trade mark, it is your responsibility to protect it. This may involve seeking legal advice and sending trade mark infringement letters to another party. This may also mean that you need to be particularly active in advertising your rights, as well as monitoring the market to make sure no similar names are being used.

International trade marks

Trade mark protection in Australia is limited to Australia only. If you are trading internationally or are recognised in other markets around the world, you may want to consider registering an application in those countries. This can also make it difficult if you are trading on the internet. This is because if you offer goods or services that are visible worldwide, unless you have a trade mark registered in all the specific countries you are trading in, you may be infringing an existing trade mark in other countries.

Conclusion

Understanding the limitations of trade mark protection will help you stay equipped with protecting yourself and your business. By having a clear idea of the steps you may need to take to maintain trade mark protection or to enforce your rights, you will be able to make the most of the use of your intellectual property. If you are interested in finding out more about trade marks, including their benefits and limitations, contact our team of LegalVision trade mark lawyers!

Kristine Biason

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