A trade mark is used to distinguish the goods or services of one trader from another. It is a way to identify your unique brand and can be a valuable marketing tool. Trade marks foster customer loyalty and demonstrate the value of your products and services. Protecting your trade mark is a business imperative.
According to the Trade Marks Act 1995, a trade mark may be granted for a name, symbol, device, word, letter, sound, smell, logo, image, packaging or any combination of these elements. Some well-known trade marks include McDonald’s golden arches, Coca-Cola’s distinctive red and white packaging and Google’s colourful font. The main criterion of successful registration is that the trade mark must distinguish goods or services. Trade marks which are descriptive, which consist of commonly used words (like ‘great’) or commonly used graphics (like pipes for a plumber) are difficult to register. You will not be granted a monopoly on words or graphics that other people may legitimately need to describe their own goods or services. When registering a trade mark, you must provide a description of the goods or services for which you intend to use your trade mark. Your trade mark is then registered within one or more of 45 classes of goods and services. These classes range from telecommunications, construction and medical services to chemicals, meats and alcoholic beverages. The only exception is where the trade mark is to be used for ‘defensive trade mark’ purposes.
Once you have registered your trade mark, you have the legal right to use, licence or sell it within Australia for the class of goods and services for which it is registered. You also retain the right to prevent other parties from using it. If you decide not to register your trade mark, there is always the possibility that someone else might; then they will have the right to prevent you using it. Your intellectual property is a valuable asset.