Getting a trade mark that stands out

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Getting a trade mark that stands out is tricky, especially since these days the trend is for something catchy yet simple, something that resonates in the minds of your customers.

But too simple, and you have another problem altogether – that the trade mark may not be considered distinguishable, or worse, may need to be used by the industry that you operate in.

For example – I would be unlikely to be successful in obtaining a trade mark over the brand “Delicious Anzac Biscuits”. Many other businesses in the baking industry would likely need to use that phrase, or a combination of those words, in their marketing campaigns or otherwise – to grant me a trade mark over such a commonly used phrase would not be in the public interest.

Even if you are successful in getting a trade mark that covers a generic term in the industry, that doesn’t mean that your problems go away! First and foremost, you would now have to watch the market and the trade marks register quite carefully to ensure that none of your competitors register or use something similar. Secondly, your registration may not necessarily mean that any of your existing competitors that use a similar mark to yours would stop using that mark! They could very well argue that they were using a similar trade mark before you registered the trade mark, and this could protect them from you.

Therefore it is really important to get a trade mark that stands out above the others, something that is clear and distinctive, but not something that the industry is likely to use. Once you have that, come to us, and we’ll certainly help you register it!

Domain Names and Trade Marks

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We’ve previously written before about the difference between a trade mark and a business name. Just like a business name though, a domain name registration by itself doesn’t stop another person from using a same or similar name.

A domain name is another name for your website address. For example, our domain name is trademark-lawyer.com.au. In Australia, all domains ending in .au are administered by the .auDA organisation. They set down a number of rules establishing what can be registered, and who can register them. Registration can be done at any authorised domain name registrar.

Not every domain name may be registered, however. An Australian Business Number or an Australian Company Number is required to register a domain name ending in .com.au. In addition to this, the domain name must be connected to the business. There are some other limitation as well, but generally speaking, as previously mentioned, a domain name registration by itself does not prevent a you from stopping a competitor from using that domain name as a trade mark or business name.

We’ve written about trade mark registrations before – as previously mentioned, a trade mark registration grants certain legal rights to the the owner of the trade mark. A registered trade mark can prevent your competitors from trying to register a similar trade mark in a similar field.

It’s worth considering registering your trade mark at the same time that you register your domain name. In addition to this, you can register can register a domain name as a trade mark as well.

If you need any help, we can advise you whether your domain name can be registered as a trade mark.

Objecting to a Trade Mark Application

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You are responsible for defending your own trade mark – the government does not do it for you. This does mean that you must keep an eye out at all times on your competitors as well as do some searches from time to time on the online trade mark registry. Some businesses use search agents to regularly scan the registry for similar marks.

When you do find a similar mark to yours being registered by a competitor, you should act quickly. The Trade Marks Act 1995 (Commonwealth) gives a short period of time to lodge an opposition to your competitor’s proposed mark. This is a period of two months from the date the mark was advertised in the Australian Official Journal of Trade Marks. This is a very short period of time – no extensions!

Once submitting a notice of opposition, your competitor is given the opportunity to respond. If your competitor still wants to go ahead with the matter, then IP Australia gives all parties a period of time to put together their arguments and evidence. The matter then gets set down for a hearing before a registrar of trade marks.

If you are going through this process we can certainly assist you in relation to these matters. Time is however, quite short, when it comes to these things, and the sooner you act, the better. Give us a call or e-mail us using the contact us form on our website.

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