Trademark Laws in Australia was published at YAHA!
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Intellectual Property is a significant form of property which has become a huge industry in every nation of today’s world. As soon as a right gains significance, there rises the need for its protection and so laws and regulations are created so that those rights can be exercised freely but responsibly, without hurting the rights of others. Due to this reason laws related to intellectual property rights have come up and are of utmost importance in today’s world.
Trademark is one such kind of intellectual property which is practised widely throughout the world and so different countries have formulated laws relating to it. In this article, we will be discussing the trademark Laws in Australia.
What is a Trademark?
A Trademark is a type of intellectual property which can be defined as a unique sign or symbol which represents a business or organisation or product. These signs or symbols become trademarks when they are registered and become intellectual property which others cannot use. Trademarks do not have an expiry date but they need to be done through the proper paperwork. A Trademark becomes synonymous over time with the company and it holds immense value.
For instance, the trademark of the tech giant Apple is the sign of an apple whose bite has been taken. Again the trademark of Nike, being the Swoosh logo, has become synonymous with the company. People tend to recognise the products of these companies through their logos only.
Trademark Laws in Australia
Trademark Laws in Australia are namely the Trade Marks Act, 1995 (Cth), The Trade Marks Regulation, 1995 (Cth) and the Australian Consumer Law. The base on which these legislations have been enacted are on common law use-based rights. The governing body, as per the provisions of the above-named legislation, is known as the IP Australia and it regulates the trademarks in Australia.
The Trade Marks Act, 1995 defines the meaning of a trademark, procedures for the registration of a trademark and describes what amounts to infringement of a trademark and the defences and exceptions relating to it. Section 17 of the Act defines a trademark to be a sign which is used or is intended to be used and that sign is distinguishable for goods and services.
This definition means that the trademark registered must be used or should at least have the intention to be used and the trademark which is to be registered must be distinguishable in nature, that is, the trademark should not be similar to that of another if that happens then the trademark’s application for registration can be refused by the governing body.
Section 6 describes the things that can be identified as a sign, for instance, a letter, heading, label, colour, signature, name, ticket, numeral, device, shape, word, sound or scent can be identified as a sign which can be registered as a trademark. A trademark, in Australia, can be registered or unregistered. The provision for the process of registration of a trademark is provided under the Trade Marks Act, 1995. An application has to be filed by the applicant with IP Australia. The application is then examined by the examiner of the trademarks to check whether the provisions relating to a trademark are being complied with or not.
The Australia Trade Marks Office Manual of Practice and Procedure is a publication of the IP Australia which helps the examiner as well as the applicant by providing detailed information related to practising and procedures of filing, examining and finally registration. If the application gets accepted then it is published in the public for two months within which if anyone has any problem with the trademark then they can object to it, if no one objects then the registration process is complete and the applicant becomes the owner of that trademark.
Normally the term of registration of a trademark in Australia is 10 years which can be extended for another period of 10 years. The trademark registered must be in use, if it is unused for a period of more than 3 years then the registration can be redlined on the ground of non-use.
Legal Protection Available to Registered and Unregistered Trademarks
A trademark can either be registered or unregistered, both of them are protected under the Trademark Laws in Australia but their protection is not similar to each other.
An owner of a registered trademark has the right to use and give authority to use the trademark and it can take action in case of any infringement of that trademark. Section 22 of the Act deals with the right of an owner of a registered trademark.
An unregistered trademark can also be protected as Australia is a common law country and the tort of passing off helps in the protection of an unregistered trademark. The protection of unregistered trademarks is also available vide the Australian Consumer Law. The right of an unregistered trademark is dependent on the reputation of the trademark sign.
This reputation can be substantiated through evidence like how the trademark has been used and promoted, third-party proof of that trademark being used, revenue figures of that trademark and other such evidence.
The protection of intellectual property rights in Australia is practised in a well-systematised manner. The Australian system of law helps in the protection of the intellectual property rights of individuals and businesses. There is some proper legislation available which regulates intellectual property rights in Australia and there are specific legislations which regulate trademarks in Australia. The laws are very well defined and are very broad in nature. The Australian legal system also provides for the protection of unregistered trademarks also which shows that the legal system for Trademark in Australia is very well processed.
- Australian Intellectual Property Laws, Australian Intellectual Property Laws, https://www.austrade.gov.au/international/invest/guide-to-investing/running-a-business/understanding-australian-business-regulation/australian-intellectual-property-laws
- Michelle Makela, Trademarks and The Law in Australia, GotoCourt, https://www.gotocourt.com.au/civil-law/trademarks/
- 2019, Trademarks in Australia, Lexology, https://www.lexology.com/library/detail.aspx?g=7aad8e57-4a3f-490c-873d-4f4b58b4aebb.
- Trademarks: Infringement, Remedies, & Landmark Cases, Legal Upanishad. Retrieved from: https://legalupanishad.com/trademarks-infringement-remedies-landmark-cases/