Trademarks

Question 1

What is a trademark?

Answer 1

A feature (word/logo) used commercially or in association with goods and services to indicate origin and distinguish them

Question 2

What can a trademark be?

Answer 2

A sign, defined in s6 as … phrase, word, logo, letter, number, colour, signature, name, symbol, picture, aspect of packaging or shape, scent, sound

Question 3

What are the justifications for trade marks?

Answer 3

reduces search cost for consumers
provides incentives to maintain consistent quality
provides incentive to invest in branding
provides incentives for development of culture and language

Question 4

Where are trademarks registered?

Answer 4

Under the Trade Marks Act 1995 (cth) in Australia. If still undergoing application process but not registered will be designated with TM symbol.

Question 5

What does the owner of a trademark have?

Answer 5

Exclusive monpoly right to use and lisence to others to use the mark in respect to which it has registration

Question 6

Compulsory to register a trade mark?

Answer 6

No. In certain circumstances law will prevent another trader from using it

Question 7

What does a registered trademark have that unregistered marks do not?

Answer 7

Legal action against infringers
Is property that can be bought, sold, mortgaged and licensed
On public record so third parties are aware of it’s existence
A complete defence to any trademark infringement

Question 8

Who can register a trademark?

Answer 8

Any legally recognised entity - must own mark

Question 9

How many classes are there under International (Nice) Classification of Goods and Services for Purposes of Registration Trade Marks

Answer 9

45

Question 10

What are the most relevant cases for Trade Marks to Entertainment?

Answer 10

Class 9 - audio and audio visual equipment
Class 16 - printed material
Class 24 - textiles and textiles goods
Class 25 - clothing, footwear and headgear
Class 41 - educational, entertainment and cultural services

Question 11

What does trade mark process entail?

Answer 11

An application, examination, acceptance, registration and renewal.

Question 12

How long does trademark registration initially last?

Answer 12

10 years from date the application is filed

Question 13

It’s important to select a sign with what qualities?

Answer 13

Distinctive and not merely descriptive
Easy to say and spell
Different from signs used by competitors
Not defamatory or misleading
Not a geographical description or a common surname

Question 14

What are the general requirements of distinctiveness

Answer 14

Inherently adapted to distinguish
somewhat inherently adapted and can or will distinguish
no inherently adapted but distinguished because of extensive prior use by the applicant

Question 15

What is needed to be successful in an infringement action for trade marks?

Answer 15

infringing mark was used as a trade mark
the infringing trade mark is identical or substantially similar to your registered trade mark
the goods or services in relation to which infringing trade mark was used are the same or similar to goods or services which trade mark is registered

Question 16

What are some of the defences or limitations on infringement

Answer 16

good faith use of name
descriptive uses
spare parts and accessories
comparative advertising
right given to erson
likely to recieve registration if person was to apply
limitation on trade mark itself

Question 17

What is another defence

Answer 17

Disclaimers also prevent own from maintaining an infringement action in rescpect of the disclaimed matter

Question 18

What are the remedies for trade mark infringements

Answer 18

Injnction

Damages - option of applicant (or account of profits)

Question 19

What do trade mark offences include;

Answer 19

unauthorised alteration, defacement, removal of trademark
false application of trade mark
making or possessing equipment with knowledge that it’ll be used in the context of any of the above
knowingly selling or offering for sale
aiding or abetting any of the above
making a false representation that a mark is registered

Question 20

What other ways are there to protect a business

Answer 20

Separate registration systems for business names, company names and domain names