What is a trademark?
A trademark is a word or symbol which is used by an organisation, company or other commercial entity to represent itself to broader society. It is often closely associated with a brand name or other aspects of the unique image of a company or commercial organisation. Companies often want to protect their identity and they register trademarks to protect images or words which are strongly associated with their brand name and organisation to prevent potential competitors from using the image or branding and establish a closer association and brand dominance. In Australia, trademarks are registered with a government organisation known as intellectual property Australia which is an organisation that oversees the operation of intellectual property law, trademark law, copyright and patents.
What are the criteria by which a Trademark Dispute is judged?
The criteria by which an infringement of trademeark infringement are judged is if the image being used is ‘Substantially identical’ or ‘deceptively similar’ to the existing trademark. This requirement comes from TRADE MARKS ACT 1995 – SECT 120 which states that ‘A person infringes a registered trade mark if the person uses as a trade mark a sign that is substantially identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered’.There are cases which indicate that simply registering a similar domain name is not sufficient to attract the trademark infringement provisions. It would largely depend on the degree of intention of the person attempting to copy you if the infringement was deemed to be ‘deceptively’ similar. However, if someone was simply registering a company name as a domain which was already in prior use, this would most likely not infringe your trademark. If they were actually intending to copy you, this is more likely to attract the provisions of trademark violation law.
There are also sometimes trademark disputes which result from competing registrations. This means that when a person tries to register a trademark, another might object on the basis that it is too similar to an existing mark or that it is overly generic in nature which means that the term that the mark refers to has entered generic usage to the extent that it would unacceptable for one commercial organisation to own a particular mark or identity. An example of this would be where a mark like ‘blue’ or ‘apples’ were applied for – it may be rejected on the basis that it is a generic element of the English languages. Examples of line ball cases in relation to matters like this are where there has been a dispute over the generic usage of a term like ‘Vegemite’ or ‘Weetbix’. In these particular cases, the company was allowed to register the mark, but where a logo has become so widely used as part of a language, it is at risk of becoming unregisterable because of the generic nature of the language in the brand. If you would like any assistance with an aspect of trademark law, we would be more than happy to assist you with a trademark application or trademark violation dispute. Simply contact us using one of the tools to the right.
