What is a trade mark?
A trade mark is any sign (whether a word, an image, a phrase or a colour scheme, etc.) that acts to distinguish the goods/services of one trader from the same or similar goods/services of another trader. Whilst it is not obligatory to register a trade mark, registration provides the most secure form of protection for these valuable IP assets and can provide a solid platform for IP-based business models, such as franchises and the like.
Registered Trade Marks vs Registered Company and Business Names
Registered Trade Marks are different to Registered Company and Business Names.
When you trade or conduct business under a name other than your own, you are required to register that name as a business name if you are trading as a sole trader or partnership; or a company name if you are trading as a company. Business and Company name registrations are managed by ASIC. However, registration of a company or business name does not confer any legal ownership to that name.
By registering your company or business name as a trade mark, you gain the exclusive right to use the trademark in relation to specified goods and services throughout Australia and in any other country in which registration is sought.
To qualify for registration a trade mark must be distinctive and sufficiently different to existing trade marks for the same or similar goods/services.
Trade marks, such as words or images that describe the goods/services you provide, are likely to be required by other traders to describe their similar goods. Such words or images that are directly descriptive of the relevant goods/services are generally not deemed sufficiently distinctive to qualify for registration, unless they have been used for a long period of time in the marketplace and thus have become well-known as being associated with a particular business. Examples of words that would be difficult to register as trademarks without substantial evidence of use are “HI-SWEET” for confectionery and “FRESH AND HEALTHY” for food or restaurant services.
Conflicting Trade Marks
To be registrable, a trade mark cannot conflict with an existing registration or application (or even an unregistered trade mark that is in use in the market) for the same or similar trade mark in respect of the same or related goods/services.