Trade Mark registrations protect any letter, word, name, signature, numeral, device, brand, heading, label, ticket, aspect of packaging, shape, colour, sound or scent. A good trade mark distinguishes you from your competitors, lets consumers easily identify the product or service as originating from you and acts as a badge of confidence for your products and services.
For that reason, infringers may wish to adopt your trade mark or infer a connection with your business and theirs, when there is no such connection.
When this occurs the original trade suffers loss of sales and, if the competitor’s product or service is poor quality, loss of reputation.
If someone has adopted use of your trade mark, or a mark like it, call us for a free and confidential discussion regarding what you can do to stop the infringement and how you can be compensated for your loss.
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EAGLEGATE’s founding Partner, Nicole Murdoch, is an Engineer, has formal training as a Patent Attorney and has over 10 years industry experience in the IT industry. She is a Doyle’s Guide recommended IP lawyer and holds a Masters in the subject matter. She has practiced IP law for the last 10 years and understands the practical implications of court cases on clients and their businesses. She aims to settle cases on commercially sensible and economic terms without having to proceed to court.
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TRADE MARK FAQs
Do I have to use my trade mark?
Trade marks are a use it or loose it regime. This means that you, or someone under your control, must make legitimate use of the trade mark during the relevant non-use period in order to stop it being removed for non-use. It is possible to use the mark on only some of the goods or services of the registration, but that may expose the non-used goods or services to removal for non-use. The relevant period for non-use period is a three year period ending 1 month prior to the filing of a non-use removal application.
Can I expand my trade mark?
Once a trade mark is filed, it cannot be expanded to cover other goods or services. The scope of the trade mark can be reduced by removing goods and services at any time.
Why is IP Australia refusing to register my trade mark?
As part of the registration process, IP Australia will examine your trade mark and either accept it for registration (in which case it will be advertised for opposition purposes) or it will reject the application for registration and give reasons for that rejection. This is the start of a conversation with IP Australia and IP Australia can often be convinced to change it’s mind. There are many strategies we can use to overcome a trade mark rejection, call us today for a free confidential chat.
What is a common law trade mark?
A common law trade mark is a trade mark that is used by a trader without registering it with IP Australia. Common law trade marks are enforceable under the Australian Consumer Law but it does not afford the same protection as a trade mark registration.
How do I know if someone is infringing my trade mark?
You must remain vigilant to other traders adopting your mark. There are three types of trade mark infringement under the Australian Trade Marks Act. To infringe a mark a trader must use as a sign a mark that is substantially identical or deceptively similar to the registered trade mark, AND the goods/services must be identical or of the same description.
Alternatively, if the mark is a famous mark then the goods/services can be unrelated but because of the fame of the mark, the sign would be likely to be taken as indicating a connection between the unrelated goods or services and the registered owner of the trade mark.
No defences must apply to the infringement.