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You can apply for International trademark using the Madrid Protocol

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You can apply for International trademark using the Madrid Protocol

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If a business has plans to expand outside of Australia it is wise to get the process underway. applying in this manner will be easier than applying country by country.

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You can copyright a 3D shape that is used to distinguish goods or services of a trader eg. packaging, cups or cushions. To register your shape for protection, you have to prove that your shape sets your goods or services apart from other traders and prove that it is an original shape. Frankie Bardoe

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If you don't use your trade mark , anyone can apply for it to be removed due to non use.

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You need to use your trademark or risk losing it. If a registered trademark is unused, it can be removed from the register.

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You can even trade mark plants!
Plant breeders right give you rights to  commercialise a plant varity

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Products such as cheese, whisky and tea can be considered for a Geographical Trademark. The rules must relate to a particular geographical origin, the quality and standard of processing. The IP Australia website explains how a type of cheese must be made only from the milk of cows from a particular geographical location.
Angela

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If your trademark becomes known as the generic name for your goods or services (eg. Band-Aid), a third party could have your registration cancelled through the courts.

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If you don't use your trade mark, anyone can apply for it to be removed 5 years after the date of filing

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A third party can apply to the court to have your trade mark cancelled if your trademark for your goods or services become known by a generic name.

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The following legal personalities can own trade marks:

an individual

a company

an incorporated association

an unincorporated association (for a collective trade mark only)

a body existing under legislation (for example a registered charity).

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Woolmark
ABC
Arnotts
David Jones
Penfolds
Qantas kangaroo
RM Williams
Vegemite
Wallabies
Weetbix

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As each financial year comes to an end we receive an increased number of reports of unofficial invoicing from Australian trademark holders. The companies that send out these invoices access trade mark holder’s details by trawling through information which we need to publish to comply with our governing legislation. The companies sending these invoices are not associated with IP Australia or with any other government agency. You are not obligated to pay them to use our services. Nicole

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There are 45 classes of Trade mark for services and goods. The person,  who is registering the TM must choose the class or classes relevant to goods and services, which should be covered by the TM. His trademark will be protected only under the chosen classes. The classes can't b changed.
Alena

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Sound trade mark

Sound can also be a trademark. For example, Intel sound trade mark, which consists of a five tone audio progression of the notes D Flat, D Flat, G Flat, D Flat and A Flat. Trade mark number: 844282

You will need to include a sound file when submitting an application for a sound trade mark.
Alena

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How to file an opposition to the registration of a trade mark

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How to file an opposition to the registration of a trade mark

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If someone attempts to register a trade mark, you have a right of reply. Opposition to the registration of a trade mark begins with you filing a notice of intention to oppose. This is followed by your tending of a statement of grounds and particulars.
Importantly, any opposition you file must be made within two months of the trade mark you wish to oppose being advertised as accepted in the Australian Official Journal of Trade Marks.

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How to file an opposition to the registration of a trade mark

Opposition to the registration of a trade mark begins with you filing a notice of intention to oppose. This is followed by your tending of a statement of grounds and particulars.

Importantly, any opposition you file must be made within two months of the trade mark you wish to oppose being advertised as accepted in the Australian Official Journal of Trade Marks.

The first step to oppose an accepted trade mark is filing your notice of intention to oppose and paying the relevant fee.

The second step is that you must file a statement of grounds and particulars within one month of filing the notice of intention to oppose.

There is no fee to file a statement of grounds and particulars.

If a statement of grounds and particulars is not filed there will be no opposition.

A cooling-off period may be requested at any time after a statement of grounds and particulars has been filed, but before we have made a decision on the opposition or dismissed the opposition.

This is usually requested to allow negotiations to take place.

How to get an extension of time to file a notice of intention to oppose, or a statement of grounds and particulars

The time to file a notice of intention to oppose a registered trade mark or a statement of grounds and particulars may be extended if:

there has been an error or omission by the potential opponent or their agent

we have made an error or omission

there are circumstances beyond the control of the potential opponent.

An application for an extension of time can be made by filing the application for an extension of time to file a notice of intention to oppose or a statement of grounds and particulars form and paying the relevant fee.

What to do if your trade mark is being opposed

If someone opposes the registration of your trade mark, we will send you a copy of the notice of intention to oppose and the statement of grounds and particulars. If you wish to defend the opposition, you must file a notice of intention to defend with us.

Your notice must be filed within one month of being given a copy of the statement of grounds and particulars on which your trade mark is being opposed.

There is no fee to file a notice of intention to defend.

An extension of time to file a notice of intention to defend may be requested in certain circumstances, under the Trade Marks Regulations 1995. An extension fee applies.

As the owner it is your responsibility to defend your trade mark or you risk losing it. If the notice of intention to defend is not filed the trade mark application will lapse and the opposition will be discontinued. For international registrations the opposition will be successful and the International Registration Designating Australia (IRDA) may be refused protection in Australia.

If a notice of intention to defend is filed, the next step in the opposition process is evidence. A decision on the opposition will not be made until the evidence stages are complete.

The cooling-off period

An opposition may be temporarily suspended if both parties agree to a cooling-off period. It is usually requested to allow negotiations to take place.

A cooling-off period may be requested at any time after a statement of grounds and particulars has been filed but before:

we have made a decision on the opposition or

the opposition has been dismissed.

There is no fee to request a cooling-off period.

Only one cooling-off period may be requested in an opposition. The length of a cooling-off period is six months. If both parties agree, a cooling-off period can be extended for a further six months.

Either party may request the cooling-off period to be discontinued early. When the cooling-off period ends the opposition resumes and the relevant stage of the proceedings restarts.
Please note: a cooling-off period is not applicable to opposition proceedings where a notice of opposition was filed before 15 April 2013.
More information
Trade Marks Act 1995 Trade Marks Regulations 1995 Application form for removal of a trade mark for non-use

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How to file an opposition to the registration of a trade markOpposition to the registration of a trade mark begins with you filing a notice of intention to oppose.

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A shape trade mark is a three dimensional shape used to distinguish the goods or services of one trader from those of other traders. Examples of existing shape trade marks include toothbrushes, biscuits, chocolates, pens, bottles and other packaging (never even thought of them like this- so interesting).
When applying for a shape trade mark, you may need to show that the shape:

distinguishes your goods or service from other traders

is not a copy of a shape already existing as an item in the marketplace.

Mel

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If you want some serious protection over your logo and words in said logo, you can trade mark the logo as a combination of the words AND the logo, meaning that bad boy will protect the words even if you change the logo down the track. This is called a figurative trade mark.

Liam

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A movement trade mark gives you protection for a movement in relation to a good or service.

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A movement trade mark gives you protection for a movement in relation to a good or service.

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Eg, the Toyota Jump!
Kieran P.

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Trade marks don't have to be tangible.  A distinctive smell used to distinguish goods or services can be a trade mark, although it can't be the scent itself in isolation.  Understandably, a trade mark scent is difficult to register.

Heidi

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If a hashtag itself has become trade mark material for a business, for example when a business and its customers have used that hashtag so much that consumers recognise the hashtag as a brand identifier, then it could be considered trade mark material.

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If a hashtag itself has become trade mark material for a business, for example when a business and its customers have used that hashtag so much that consumers recognise the hashtag as a brand identifier, then it could be considered trade mark material.

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Other businesses or companies can have the same or similar name when registered with ASIC. the registration of that name will give you exclusive rights to that name. Just because you register your Trademark here in Australia doesn't mean that it is a registered Trademark in other countries.

Bec Derrington created SourceBottle. At first she thought that registering her domain name was enough protection, however it only secured her web URL. she registered her trademark SourceBottle(R) and eventually decided to expand globally. another company had the same name 'Sourcebottle .com which was not a registered TM. Bec registered the TM internationally and bought the domain name from the other business so that she could use the sourcebottle.com domain.

From this scenario, it is important that you register your TM otherwise someone else can register it and you will have to change yours. While you can fight for it especially if you have been around a while and are well known, it can still be a lengthy and expensive process to get it back!

Katharina

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IT IS

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Displaying the ® (R) symbol next to your trade mark whenever it is used (it is illegal to do this if you have not registered your trade mark).

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‘A trade mark is not limited to being a corporate logo. It could also be a jingle, your registered business name painted on the side of your truck or even a scent’ (IP Australia 2017).

Protection of the creators IP rights is important as the creator has invested time and money into creating something valuable that is sought after by others. Protecting the IP motivates other people to be innovative which provides an economic benefit to the wider community (James 2017, p.468).

References:

IP Australia 2017, Understanding Trade Marks, Australian Government, Viewed 13/11/2019
<https://www.ipaustralia.gov.au/understanding-ip/getting-started-ip/types-of-ip>
James, N 2017, Business law, Fourth edition., John Wiley & Sons Australia Ltd., Milton, Queensland.
State Library Victoria 2019, ‘This tin contains One Pound Nett of ... Coffee’, Viewed 13/11/2019 <https://viewer.slv.vic.gov.au/?entity=IE265963&mode=browse>

Tim D

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The importance of Chinese language trade marks 

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The importance of Chinese language trade marks 

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Treasury Wine Estates (Penfolds wines maker) registered the English language name ‘Penfolds’ in China but failed to seek protection for the Chinese language version of its name ‘Ben Fu’ because it had already been registered by a businessman known as Daniel Li (trade mark holder).

In China, Chinese language versions of a brand are more popular than the English language version. Penfold’s experience has also proved  that it is crucial to seek trade mark protection in Chinese language version before starting a business in China.

Roma

IP Australia 2019, The importance of chinese language trade marks, Australian Government, viewed 25 May 2019,
<https://www.ipaustralia.gov.au/tools-resources/case-studies/importance-chinese-language-trade-marks>

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The Importance of Renewal and paying fee on time. 

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The Importance of Renewal and paying fee on time. 

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Renewal of a trade mark is payable every 10 years, should a business not pay the renewal fee,  a six month grace period will be applied, should this time lapse  the trade mark will be removed from the IP list, deregistered and cannot be restored.
This would require the business to submit a new trade mark application. Risks include another business successfully applying,  and the original business could face paying royalties to continue to use or worst still the new owners of the trademark can legally stop anyone else from using the name.

Steph Ingram

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Geographical indication protects a good as originating in a specific territory, region or locality which is attributed to a specific quality.

This is why in Australia we can not produce a Champagne, only a White Sparkling Wine. Champagne is a district of France known for this particular style of wine. The same lies true with Moselle and Chablis. However, does it does not apply to Riesling as this is named after the grape used and not a location.

Doug

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A type of trade mark available to a business includes that of movement as a form of recognisable IP. The Toyota Jump, or Microsoft's animated sequence during advertisements can be applied for and protected under trade mark. During application for this type of trade mark, the business must include a video of the movement which they wish to trademark.

Michael S

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In order to be entitled to file for an international trade mark each applicant must be either:

an Australian national

an Australian resident

someone who owns a real industrial or commercial establishment in Australia

a person or organisation with a business premises in Australia.

business need to have an Australian footprint in some way to trademark their logo or product in Australia.
Thomas

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Under the Competition and Consumer Act (2010) a person can be held liable for using another's unregistered trademark or logo if that logo/trademark has built a substantial reputation.

Referenece
IP Australia 2019, Benefits of trademarks, Australian Government, viewed 19 May 2019, <https://www.ipaustralia.gov.au/trade-marks/understanding-trade-marks/benefits-trade-marks>.

Amber

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Trade mark can be removed for non use. Trade marks should be actively used. This is done to discourge registering  multiple trade marks simply to avoid others to use it.

Jag

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GI's for all goods are registered utilising the Certification Trade Marksystem (CTM, and if you are registering for wine you must use a separate system. This is useful for different types of business to show that their goods and services meet the standards set.

JJ

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Even if your business name is similar to another, however the logos themselves are different, there can still be a mutually beneficial outcome if you go through the correct channels i.e. Mabo v Mambo

Mark

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Malcolm Mabo wanted to use his surname for a new clothing business. However, Mabo is no ordinary name. His father, Eddie 'Koiki' Mabo, led the landmark High Court case for native title in Australia.

The Mabo brand is made from Malcolm's surname and symbols from his traditional community. He applied for a trade mark to protect his brand.

Another clothing business, Mambo, opposed the registration of Malcolm's trade mark. At first, Mambo thought Mabo was too similar to their trade mark.

This is normal for businesses with well known brands, but Mambo wanted to talk with Mr Mabo and find a friendly solution.

It didn't take long for Malcolm Mabo and Mambo to come to an agreement and both businesses can now use their trade marks.

Mambo will re-release a 100% Mabo T-shirt, first distributed to celebrate the 1992 High Court decision. All profits will go towards helping Mr Mabo establish his clothing line in the North Queensland community of Palm Island.

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Malcolm Mabo wanted to use his surname for a new clothing business. However, Mabo is no ordinary name. His father, Eddie 'Koiki' Mabo, led the landmark High Court case for native title in Australia.The Mabo brand is made from Malcolm's surname and symbols from his traditional community.

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A movement can be trademarked in relation to goods or services. An example of a trademarked movement is the Toyota jump i.e. the silhouette of a woman jumping into the air with outstretched hands above her head. Check it out here http://pericles.ipaustralia.gov.au/epublish/av/1676600.mp4

Jesse

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If your trade mark application meets all requirements, it will be advertised for a two month period in which third parties may oppose registration.

Kristian

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Trade Mark is a quick way of showing the identity of a business such as a logo or slogan (IP Australia 2018). Often people only see a business on the side of the road very quickly as they drive past. A trade mark should stand out and grab attention so that it will be remembered and give the potential customer some idea of what that business represents. 

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Trade Mark is a quick way of showing the identity of a business such as a logo or slogan (IP Australia 2018). Often people only see a business on the side of the road very quickly as they drive past. A trade mark should stand out and grab attention so that it will be remembered and give the potential customer some idea of what that business represents. 

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Liam

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A trademark is a 'brand' and used to identify a unique product or service, it grows in value as your business does.  The trademark registration lasts for 10 years and must be renewed to ensure you keep control.
Lynn Marie

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A trade mark is not confined to just being a logo or something in written form... it can even encompass a scent if it is noteworthy enough!!!

Perry

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If you tried to register a celebrities name as a trade mark but didn't have the celebrities permission to do so this would be deceptive, as if the celebrity had affiliation or an endorsement with your business that didn't exist. This is prohibited in Australia. I think this is interesting, in the case of Kylie Jenner trying to trade mark the name Kylie. Kylie Monogue took her to court over it and won.
Emily

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Domain Registration does not equal trademark registration

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Domain Registration does not equal trademark registration

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Just because an entity registers a domain does not mean the entity has registered a trademark. In other words, you better be quick and register your trademark or else another entity may beat you to it!
Emma

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Madrid allows you to register your trademark in more places than just Spain!

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Madrid allows you to register your trademark in more places than just Spain!

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If you wanted to register your trademark overseas, you may make an application through the Madrid Protocol (in the original country of registration) which will allow a business to have their trademark registered for up to 10 years in all countries who are party to the protocol.

Tim M

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It is your responsibility to ensure your trade mark is recognised as a trade mark and not as the generic brand for your goods or services. If it becomes generic a third party could have your trade mark cancelled.

Natasha

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Even unregistered trademarks can be protected under certain laws.
If a business has been using an unregistered trademark for a long period of time and are well known for that trademark, it can still be classified as unlawful for another business to use it.

Ella

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If you don't 'actively' use your trademark in a period of three years, it can be removed due to 'non-use'.

Anybody can apply for another trademark to be removed due to non-use!

Adriana P

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You need to be very careful when choosing a colour as some colours are already trademarked and if you use them you could end up in court trying to settle a dispute.

Shantelle

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You are not aloud to reproduce and call a product something that is produced in a specific way in a specific region.
Werner

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Even stitching on a garment could be a trademark...

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Even stitching on a garment could be a trademark...

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you need to be careful about any product created!
Lydia