Sam is the owner of a Brisbane café, which is known for excellent coffee, having won several awards for the best coffee in the region. The coffee takeaway cups are easily identified by a distinctive logo, which Sam created himself using a photo of some of the latte art he had poured. This logo is a vital part of Sam’s café’s identity, and great for marketing.
Several years after Sam created the logo, one of the roasters who supplies Sam’s coffee beans pointed out that his logo was very similar to the one they used. He told Sam that they had trademarked the latte art shape and that they would turn a blind eye this time, but if they wanted to, they could bring legal action.
Sam was shocked and disappointed. He had created the logo well before ever seeing the roaster’s logo, and it was created from his own photo! Plus it was an important part of his café’s identity, and if he was ever forced to stop using it, he would have to work hard to get a new logo known to his customers.
This was a lesson for Sam in the importance of registering trademarks for your business. While there is no legal requirement to register a trademark in order to use it, if someone else has already registered the same trademark as yours, they can take legal action against you if you infringe their IP (Intellectual Property) rights.
A trademark, sometimes referred to as a brand, identifies your product or service in the marketplace, and differentiates you in comparison to your competitors.
A good trademark, like Sam’s, can identify your product at a glance and becomes synonymous with the quality of what you are offering.
A trademark isn’t limited to a logo – it can also be a letter, number, word, phrase, shape, sound, smell, movement, an aspect of packaging, or a combination of these. Think of your trademark like your brand “package”. A trademark can also be differentiated from a “design”. A design requires unique or new elements to be registered, whereas a trademark does not.
Trademarks are registered under the Trade Mark Act 1995 and you can apply to register your Trademark with IP Australia. The registration will be valid for ten years from the date of filing and a reminder will be sent to you when it’s time to renew your application.
During the registration process, there are opportunities for other entities to oppose the registration of your trademark. Similarly, you may like to oppose the registration of another entity’s trademark because;
- The trade mark is identical or very similar to your trademark, which is registered in Australia
- Deception or confusion is likely because of the reputation of another trade mark in Australia
- The trade mark applicant is not the true owner of the trademark
If you wish to take opposing action, we strongly suggest you seek legal advice.
If somebody infringes your IP rights by using your trademark after you have registered it, you may be able to take infringement action. If you find yourself in this position, you should seek legal advice as soon as possible.
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