Following on from last months article which raised issues which may arise in the social media arena, we thought that a quick overview on what a trade mark is, and how these can affect a business in the e-commerce world or through social media.
So what is a trade mark?
A trade mark is essentially an image (logo, symbol, picture), colour, name, phrase, word, signature or even a shape, scent or sound which indicates that the goods or services are from a particular business or provider. Examples are the tick mark of ‘Nike’ and the words ‘Coca-Cola’ or ‘McDonalds’.
A trade mark can be comprised of one of the abovementioned categories on its own or it can be made up of a combination of them.
In Australia, there are two types of trade marks, one is a registered trademark and the other is a common law trademark.
As the name suggests, a registered trade mark is a one that is applied for through the Australian Trademarks Office (following the registration process and by making a payment of the prescribed fees) and once it is accepted it becomes registered.
The other is a common law trade mark, which is a mark that has been used by a business to such an extent via branding/advertising that it is recognisable and distinguishable from other businesses which provide the same type of goods or services.
Having a registered trade mark provides the owner with an exclusive monopoly right to use the mark for the goods and/or service categories for which it is registered within Australia, and also provides them with the ability to licence the use of the mark out to others (for example a franchise).
For common law trade marks, the use of that mark by others may allow the business to pursue an action under misleading or deceptive conduct against the infringing business in certain circumstances.
It is important when you have an online social media profile or business that you are aware of trademarks, and ensure that your logo doesn’t infringe on a registered trademark.
A trade mark registration remains current for a period of 10 years from the date that the application was filed, and can be renewed indefinitely by paying the renewal fees for each successive 10 year period for each class that the it is to remain registered in.
Similarly, if you have a product, business or logo that you are wanting to protect, it might be a good idea to obtain legal advice regarding your trade marking options.
Once a trade mark is registered, unauthorised use of the mark may allow the owner to take action against the infringing party, provided that they are able to satisfy the prescribed requirements under the Trade Marks Act 1995 (Cth).
It is also important to realise that there are also defences which may be available to the infringing party under the Trade Marks Act 1995 (Cth) which may affect the outcome of any court proceedings so it is important, as always, to seek independent legal advice in relation to your individual circumstances should any issues arise.
If you are considering starting a business and are in the design phase of the process, or you would like any further information about trade marks, trade mark applications or possible copyright infringement issues, then our friendly legal team are available to provide expert assistance in this area.
Contact our Runaway Bay office today on 5563 8970 to arrange an initial consultation with one of our team members.
