What is a trade mark?
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A trade mark is a “sign” used to distinguish the goods or services of one trader from the similar goods or services of any other trader.
Most trade marks are words or logos but a “sign” can consist of any letter, word, name, signature, numeral, device, brand, heading, label, ticket, aspect of packaging, shape, colour, sound or scent – or a combination of any of these.
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Why would you want a trade mark?
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One of the hallmarks of most successful businesses is a recognisable brand. This is a key way of differentiating you from your competitors.
Trade marks help to protect brand value by giving the owner rights in the trade mark that can be asserted over others. These rights are superior to registered company, business and domain names.
Trade marks are most commonly associated with businesses or brands. Consumers may associate positive (or negative) attributes to certain brands. Brands that position themselves at the premium end of the market need to protect that position.
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- A trade mark registration is personal (or corporate) property and may be dealt with as such by the registered owner. A trade mark application or registration can be assigned to another person for monetary consideration.
- Registration of a trade mark gives to the registered owner the exclusive right to use the trade mark in respect of the registered goods.
- It is generally easier to prevent another trader from using a registered trade mark than it is to prevent them using an unregistered trade mark.
- The registered owner of a trade mark can license another person to use the trade mark, sometimes in return for a fee or royalty.
- The registered owner of a trade mark can record their trade mark with the Australian Customs Service to assist in preventing the importation of counterfeit goods and/or goods bearing an infringing trade mark.
- The rights afforded to a registered trade mark are Australia wide whereas rights in an unregistered mark are usually limited to those areas where reputation can be shown.
- It is an offence to use the ® symbol unless the trade mark is registered.
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Unregistered trade marks v registered trade marks
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It is possible for a trader to use and acquire rights to a trade mark without applying for registration of the trade mark. However, the advantages of applying to register a trade mark include the following:
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- The registered owner can be reasonably confident that use of the registered trade mark does not infringe any other trade mark registration
- A trade mark application or registration puts other traders on notice that the applicant or registered owner claims ownership of that trade mark;
- It is considerably easier to prevent other traders from using a registered trade mark than it is to prevent them from using an unregistered trade mark;
- Any rights acquired by use are usually limited to the area where reputation can be shown, whilst registered rights are normally Australia-wide.
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