You may know that a trademark is one kind of intellectual property used to identify and distinguish one source of goods or services from another and make it easy for the consumer to quickly find out who has produced a product or object.
It is a form of brand protection that distinguishes your products from others. A registered trademark offers you exclusive rights to use, license and sell the intellectual property. It is a valuable marketing tool that can increase the success of your business.
The Australian government allows you exclusive rights to the ‘mark’ or intellectual property, which makes it easy for you to take legal action against those who try to use it, thus preventing them from doing so. A registered trademark is different for businesses, companies and domain names.
Busting the myths
Trademarks are not exclusive to ‘logos,’ they can be a sound, shape, smell, picture, movement, aspect of packaging or any combination of these. A trademark cannot be a business name, company name or domain name. This is a common misconception. Here are some additional aspects you should know about:
- Business names and company names are registered with the Australian Securities and Investments Commission. So even though they are required to run a business in Australia, it does not disallow others from using the same name or similar name.
- Intellectual property rights for design are different from a trademark. A design has to be unique or new to be registered, but a trademark does not. Design exclusively refers to the shape, pattern, configuration, and ornamentation of a product.
Domain names are normally issued by private internet companies and registered by the Australian domain administration. The domain name is to secure a web URL only.
- Legalities involved in getting a trademark - Matters may arise in the process of applying for a trademark which requires you to protect your trademark. These are known as trademark oppositions (elaborated further below). It is important to remember that you are solely responsible for enforcing your trademark. This includes monitoring the marketplace for potential infringement of your trademark.
The Australian government cannot help with enforcing your trademark since it is not a legal body. This includes taking legal action to enforce your rights or confront parties that have opposed your trademark application. For that, you would require the assistance of Australia’s legal professionals and intellectual property lawyers Perth. There is no standard legal requirement to register for a trademark otherwise. However, if someone has already registered for the trademark you intend to use, they have full rights to take legal action against you.
- Opposition to the registration of a trademark - An opposition is a formal objection to the registration of any trademark while it is in the process of being registered. The opposing party might object to a trademark because the trademark application might be too similar to theirs, or if they own a registered trademark and another party is attempting to remove it.
- Life of a trademark - From its filing date, your trademark lasts for ten years. You can renew your trademark registration 12 months before your renewal is due and up to six months after, although it costs extra fees to renew after the due date. The Australian government sends you renewal reminders, so always keep them updated on your address and contact details.
Using your trademark to avoid removal
The law requires you to actively use your trademark in the course of your trade. If you do not use it, it can be removed on the grounds of non-use. This is to prevent people from exploiting the trademark system and registering with many trademarks to prevent others from using them and taking legal action against them.
Crucial pointers to note
Anyone can apply for removal of a trademark on the grounds of non-use. The earliest non-use application can be made five years after the filing date of the registered trademark. You need to have proof that the trademark has not been used in at least three years.
If the Australian government receives a request to remove your trademark from the register, they usually send a notice that informs you about the situation and gives you a chance to defend your trademark removal. Things that can be opposed include:
- An application to remove a non-used trademark from the register.
- An application to register or protect a trademark that has already been advertised as accepted.
- An application for an extension of more than three months (under section 224 of the Trade Marks Act 1995).
- An application to amend a trademark application (under section 65A of the Trade Marks Act 1995).
Why you should hire an intellectual property lawyer Perth
Getting a trademark and keeping track of it can be a lot of work. With your trademark in place, you would ideally want to keep using it by running your company or business. Hiring a high class, professional lawyer or attorney can help you keep an eye on all the infringements that might be taking place. Here’s why you should hire them:
- Non-use of trademarks - Dealing with opposition and requests to take your trademark away due to non-use can be a hassle, especially since it just takes away from time you could be spending building your foundation, or moving your company forward.
- Absolute protection - A good intellectual property lawyer will know all the ins and outs of the trademark laws, and ‘commonly exploited’ loopholes, and will protect you in the situation where a legal conundrum like that arises. They have the skill to gather all the information about the case, about the opposing party, and information about your company that can help them protect you.
Professionals do help
They would make a case against the opposition or in your defence. If someone tries to steal your trademark by applying the same or a similar trademark, you can rest assured that your lawyer will be able to take care of the situation. All you will need to do is listen to your intellectual property lawyer in Perth and show up in court every now and then.