When looking at a business, it may be easy to identify what their brand is; this can be done by recognising the name of a product, a slogan or their logo. This brand could also be identified by a specific colour, the sound of a jingle, a type of product packaging, or the shape of a product. The role of the brand is to become known to a customer. This function occurs when a bond forms between the product or service offered by the sign or device that represent the brand. The way a business can protect the key engager of this relationship would be to register the sign or device as trade mark.

Before looking at what signs or devices can be registered as trade marks, lets find out what a trade mark is.

What is a Trade Mark?

A trade mark is a sign that can be a letter, number, word, phrase, sound, smell, shape, logo, picture, aspect of packaging or a combination of these. This sign is used to distinguish the goods and services of one trader from those of another.

Examples of Trade Marks

The following signs are examples of registered Australia trade marks that appear publicly on IP Australia’s public registry ATMOSS:

Word

One of the most common trade marks applied for is a word mark. There are many examples of words registered as trade marks. From AAAAAA EVERLAST for services in connection with the fitting and installation of mufflers and exhaust systems to NIKE claiming apparel (clothing, footwear, headgear) through to ZAMBRERO registered for food services.

A word mark can also be used to register slogans in respect of particular goods and services.

Letter

The following registered trade mark is an example where only letters are being used to represent the trade mark. This trade mark is owned by the National Roards and Motorists’ Association Limited, or as the public would recognise this registered trade mark, NRMA.

Number

The following is an example of where the use of a number has formed the essential feature of the trade mark. This trade mark is owned by Telstra and registered with respects of a combination of goods and services relating to telephones, wholesale and retail services, sponsorship of sporting and cultural activities, and telecommunication services.

telstra

Sound

A sound mark can be represented by anything that can be heard. This could be a complex orchestral arrangement through to a simple mechanical clicking noise. The sound can be sung, spoken or a combination of voice and other sounds.

To be registered as a sound mark, the sound must be used in connect to the goods/service claimed. The sound must be able to be represented graphically, which could include a simple description of the sound.

Example of a registered sound Mark is by Intel (1077876), which contains the following descrption of the sound:

The trade mark consists of a five tone melody audio progression of the notes D Flat, D Flat, G Flat, D Flat, A Flat and has as chordal tones the notes D Flat, G Flat, A Flat, E Flat and F as represented in the musical notation on the application form; a recording of the sound appears on the accompanying CD labelled: ‘Intel Corporation Second Sound Mark’.

Scent

It is stated that this trade mark is one of the most difficult trade marks to be represented graphically. However, the following trade mark is an example of a registered scent mark for golf tees. The scent was represented graphically in the endorsement as follows: The mark consists of a Eucalyptus Radiata scent for the goods.

Shape

An essential requirement for a shape to be registered as a trade mark is that the shape is three-dimensional. It is also a requirement that the shape mark is distinctive and capable of distinguishing the goods and/or services claimed.

The most famous example of a registered shape mark is the coca cola bottle.

Aspect of packaging

Registering a trade mark for an aspect of packing could potentially include the container that contains a good or the colour or the label used in connection with the goods claimed.

It is also that a registered trade mark can be a combination of any of these too.

Conclusion

When developing or creating your trade mark from any sign outlined above, the key is that the trade mark is distinctive with respects to the goods/services claimed. This is because the approach is, that no one owner, should have exclusive ownership of words, devices, symbols or three dimensional shapes which are common to the trade.

For further legal assistance in registering a trade mark, get in touch with the LegalVision Trade Mark lawyers on 1300 544 755. We provide a fixed-fee quote and free consultation to all new clients.

Daniel Smith

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