Trademarks Flashcards
What is a trademark?
A feature (word/logo) used commercially or in association with goods and services to indicate origin and distinguish them
What can a trademark be?
A sign, defined in s6 as … phrase, word, logo, letter, number, colour, signature, name, symbol, picture, aspect of packaging or shape, scent, sound
What are the justifications for trade marks?
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
Where are trademarks registered?
Under the Trade Marks Act 1995 (cth) in Australia. If still undergoing application process but not registered will be designated with TM symbol.
What does the owner of a trademark have?
Exclusive monpoly right to use and lisence to others to use the mark in respect to which it has registration
Compulsory to register a trade mark?
No. In certain circumstances law will prevent another trader from using it
What does a registered trademark have that unregistered marks do not?
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
Who can register a trademark?
Any legally recognised entity - must own mark
How many classes are there under International (Nice) Classification of Goods and Services for Purposes of Registration Trade Marks
45
What are the most relevant cases for Trade Marks to Entertainment?
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
What does trade mark process entail?
An application, examination, acceptance, registration and renewal.
How long does trademark registration initially last?
10 years from date the application is filed
It’s important to select a sign with what qualities?
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
What are the general requirements of distinctiveness
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
What is needed to be successful in an infringement action for trade marks?
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
What are some of the defences or limitations on infringement
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
What is another defence
Disclaimers also prevent own from maintaining an infringement action in rescpect of the disclaimed matter
What are the remedies for trade mark infringements
Injnction
Damages - option of applicant (or account of profits)
What do trade mark offences include;
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
What other ways are there to protect a business
Separate registration systems for business names, company names and domain names
