How to Trademark, Registered Trademark, Business Trademark Intellectual Property
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How to Trademark, Registered Trademark, Business Trademark Intellectual Property

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Do you know How to Trademark? What is Trademark or what is Registered Trademark ? A Business Trade Mark or Business Trademark is a distinctive sign or indicator of some kind which is used by an individual, business organization or other legal entity to uniquely identify the source of its products and/or services to consumers, and to distinguish its products or services from those of other entities.

A Business Trademark is a type of Intellectual Property, and typically comprises of a name, word, phrase, logo, symbol, design, image, or a combination of these elements. Here is some information on the Business Trademark of your intended business.

Searching for Business Trademark or How to Trademark, you are obviously using a Business Accounting Software of some kind for your business. But is it performing well for you? If you are not satisfied with your Business Accounting Software performance and functionality, check out our website, our ShopMate Business Accounting Software just may do the job for your business.
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When prospective customers had a business or had it on their mind, traditionally, Softhard Solutions was able to provide them with accounting software (often also hardware) to run their business the way they do the business.

There were, at many times, Softhard Solutions' customers who did not quite have a clear picture of their Business Trademark or what it exactly may be. This page is dedicated to such people. Its all tips and 'need to know' about a Business Trademark and what to do before a beginning.

A Trademark can be a word, phrase, letter, number, sound, smell, shape, logo, picture, aspect of packaging or a combination of these. It is used to distinguish the goods and services of one business trader from those of another. A Business Registered Trademark gives you the legal right to use, licence or sell it within Australia for the goods and services for which it is registered.

There is also a range of non-conventional trademarks comprising marks which do not fall into these standard categories. The difference between trade marks, business, company and domain names sometimes causes confusion. Registration of a business, company or domain name does not in itself give you any proprietary rights - only a Business Registered Trademark can give you that kind of protection.

Business Trademark registration is not compulsory...
...but it is advisable. There is protection against misrepresentation under the trade practices or fair trading legislation. It is also possible to take action under common law but this can be a time-consuming and expensive exercise.


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Fundamental Concepts

The essential function of a Business Trademark is to exclusively identify the commercial source or origin of products or services, such that a trademark, properly called, indicates source or serves as a badge of origin.

The use of a Business Trademark in this way is known as trademark use. Certain exclusive rights attach to a Registered Trademark, which can be enforced by way of an action for trademark infringement, while unregistered trademark rights may be enforced pursuant to the common law tort of passing off.

It should be noted that Business Trademark rights generally arise out of the use and/or registration (see below) of a mark in connection only with a specific type or range of products or services. Although it may sometimes be possible to take legal action to prevent the use of a mark in relation to products or services outside this range (eg. for passing off), this does not mean that trademark law prevents the use of that mark by the general public.

A common word, phrase, or other sign can only be removed from the public domain to the extent that a trademark owner is able to maintain exclusive rights over that sign in relation to certain products or services, assuming there are no other trademark objections.


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Terminology and Symbols

Terms such as "mark", "brand" and "logo" are sometimes used interchangeably with "trademark". However, the terms "brands" and "branding" raise distinct conceptual issues and are generally more appropriate for use in a marketing or advertising context.

Specialized types of Business Trademark include certification marks, collective trademarks and defensive trademarks. A trademark which is popularly used to describe a product or service (rather than to distinguish the product or services from those of third parties) is sometimes known as a genericized trademark. If such a mark becomes synonymous with that product or service to the extent that the trademark owner can no longer enforce its proprietary rights, the mark has become generics.

As any sign which is capable of performing the essential Business Trade Mark function may qualify as a trademark, the trademark concept extends to include a range of non-conventional signs such as shapes (three-dimensional trademarks), sounds, smells, moving images (e.g., signs denoting movement, motion or animation), taste, and perhaps even texture.

Although the extent to which non-conventional trademarks can be protected or even recognized varies considerably from jurisdiction to jurisdiction, shape marks and sound marks are examples of non-conventional marks which are in the process of migrating out of this category.

The ™ symbol may be used when trademark rights are claimed in relation to a mark, but the mark has not been registered with the government trademarks office of a particular country or jurisdiction, while the ® is used to indicate that the mark has been so registered. It is not mandatory to use either symbol, although the force of convention is such that the symbols are widely used around the world. However, in various jurisdictions it is unlawful to use the ® symbol in association with a mark when that mark is not registered. Either symbol is typically placed in the top left- or right-hand corner of a mark.

Users of computers running the Microsoft Windows operating system can enter the ™ and ® characters into text by holding down the Alt key and typing 0153 and 0174 respectively into the numeric keypad.


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Trade Mark and Intellectual Property (IP)

A Business Trademark distinguishes the goods and services of one trader, e.g. Nike, to those of another, e.g. Reebok. A trade mark is used commercially and can be a word, phrase, picture, logo, letter, numeral, shape, colour, sound, scent or aspect of packaging - but not everything can be registered as a trade mark. A mark which contains or consists of the following could be difficult to register:

  • Descriptive terms, such as 'shoe' for shoe products.

  • Common surnames and geographical place names.

  • Words or phrases that favorably promote goods or services, such as 'Best Quality'.

  • Words or phrases common to trade such as 'On Sale'.

  • Marks that are identical to, or very similar to, earlier filed trade marks claimed for similar goods or services.

  • Marks that are scandalous or misleading.

  • Marks such as 'ANZAC' that are protected by other Australian laws.

  • Marks that are prohibited by international treaty obligations, such as national flags.

A patent can protect inventions and innovations such as machines, industrial processes, pharmaceuticals and their productive methods, computer hardware and software, toys, electrical appliances, plants and other biological/biotech products and processes, even some business methods—in short, almost anything commercially useful. Patents can give you protection, subject to the payment of annual fees, for either eight or twenty years, depending on the type of patent granted.


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Where to start?

Before you develop your new logo or brand, it is a good idea to start by searching for existing Business Trademark similar to yours. This will help you identify any marks that could prevent you from obtaining registration.

In some instances, searching can be complex and it is likely that you will be basing significant commercial decisions on the results (and the interpretation of the results) of your search. It is often a good idea to consider using a commercial search company or trade mark attorney to conduct a thorough search and analysis for you. A searching firm and/or trade mark attorney can also help you to develop your own search strategies for maintaining your trade mark assets.

It is strongly recommended that your search strategy includes a search of the Australian Trade Marks Database (ATMOSS). It is free to search and can be done online at IP Australia website or you can conduct a search in one of IP Australia's state offices. Call 1300 651 010 to find the office nearest to you.

IP Australia also offers a Business Names Applicant Search Service (BASS). For a fee of $40 (GST inclusive), IP Australia staff will conduct a thorough search of the trade marks database and issue a report showing if there is an existing registered trade mark which is identical or very similar to your proposed business name—however some limitations to the search apply. You can apply for a search by calling 1300 651 010 during business hours, or you can mail or fax your request. For more information on this service, visit IP Australia website.


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Trademark application process

Any person can apply to register a Business Trademark. The application should be made in the name of the person or company who owns the Trade Mark. Trade Mark applications go through an examination process before being granted. A trade mark will be registered provided it meets the requirements of the Trade Marks Act 1995, there are no objections to your mark and your registration fees are paid. For more detailed information on the trade mark application process, visit IP Australia website.

You can apply by post, online or at IP Australia's state offices. If you would like more information about the application process phone the Customer Service Network on 1300 651 010, or visit IP Australia's website.

If you already have a Business Trademark in mind and know the classes of goods and services you wish to use it on, you should consider using IP Australia's TM Headstart. This service provides an assessment which can help you determine the suitability of your trade mark for registration. On submitting a request form and paying a fee, you will be contacted within five working days to discuss the results of the assessment and be assisted through the remainder of the process.

The service may help you to identify more quickly any barriers that could prevent you from registering your trade mark. However there are some limitations to the types of marks that can be assessed via the service. For full information on the TM Headstart, visit IP Australia website or call 1300 651 010.


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Registered trade mark rights - what do I get for my registration?

If you have a Registered Trademark, you are entitled to the following:

  • The statutory right in Australia to use it as a 'sign' or brand on the goods or services specified in the registration.

  • The right to authorize or licence other people to use the registered trade mark on the goods or services specified in the registration.

  • The right to sell or deal with the mark as personal property.

  • A registration which covers the whole of the Commonwealth of Australia.

  • The option to file a notice with the Australian Customs Service objecting to the importation of goods that infringe the registered trade mark.

  • The right to take court action to stop others using the trade mark inappropriately.

  • The option to file international applications, based on their Australian application / registration, through the international trade marks system (the Madrid Protocol).

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Trademark registration costs

The cost of registering a Business Trademark depends on how many different goods and/or services you wish to use your mark in relation to. There are 45 different classes in which a trade mark can be registered and these classes cover all the different types of goods and services. At the time of publication, the application fee is $150 per class (or $120 per class if the application is filed electronically) and, if the application proceeds to registration, the ten year registration fee is $300 per class.

Visit IP Australia website for more information on trade mark fees. Fees for professional help from a trade mark attorney or lawyer are an additional cost. A registered trade mark can last for an unlimited amount of time provided you continue to pay renewal fees to IP Australia.


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What about protecting my brand overseas?

If you are thinking about expanding your business overseas or think that your market lies in specific countries, then you should consider trade mark protection overseas. Australia belongs to a treaty relating to international registration of trade marks.

The treaty, called the Madrid Protocol, provides Australians with a simpler and, in many cases, less expensive way of seeking Trade Mark protection overseas and presents several advantages to applicants seeking protection in any of the other countries who are part of the Protocol.

The advantages to using the Madrid Protocol system include:

  • Only a single international application is required.

  • It is in one language (English, French or Spanish).

  • It is filed through the Trade Marks Office of the home country (in this case, Australia).

  • Protection can be sought in more than 65 countries overseas, including the United States and the European Union, and more countries are planning to come on board.

For more information on international registrations and the Madrid Protocol refer to the:
IP Australia website.


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Unregistered trade marks

Registration of Business Trademarks is not compulsory and in certain circumstances registration of a trade mark may not be a priority for some businesses. However, if your trade mark is not registered and another person uses it you may have to take a passing off action under common law if you want to stop them (see IP Glossary for a definition of 'common law' trade mark and 'passing off').

In many cases this can be more difficult and more expensive than taking infringement action if you own a Registered Trademark. It is important to note that as some trade marks are unregistered, they will not appear on IP Australia's trade mark database.


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So what's the difference between ®, ™ and ©?

Many people are confused by those often-used symbols of ®, ™ and © that accompany a name, logo or brand. The ® symbol may only be used with a registered trade mark—this lets others know that you have registered the mark and have the right to use that brand or logo.

The ™ symbol can be used alongside a mark at any time, whether or not it is registered. It indicates that the use of the relevant 'sign', whether a word, phrase, picture, logo, letter, numeral, shape, colour, sound, scent or aspect of packaging is being claimed as a trade mark.

The © symbol on the other hand, indicates a claim to copyright ownership, which is a different intellectual property right altogether. Copyright will be discussed in more detail later in this section.


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Names - Trade marks, Company, Business, Domain and Your Business

One of the first steps you will take with your new business is to register a business name. But where do company names, domain names and trade marks fit in, and what do they do?

It is important that you understand what each registration gives you. Unfortunately, some people mistakenly believe that business name registration gives them common law trade mark rights. A legal adviser can help you to determine what is appropriate common law trade mark usage and how you can prove common law trade mark rights in court if you ever need to take a passing off action. Mistaken assumptions about business names and trade marks can have a dire impact on the future of your business.


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Search, and be sure!

A common misconception is that by registering a company, business or domain name you are immune from of the possibility of infringing another person's registered trade mark. Imagine registering a business name, setting up your business and paying for stationery, shop front signage and advertising, only to be told you must change your name because you are infringing an existing registered trade mark - it could be disastrous for your business.

If you are still unsure if your desired business, company or domain name may infringe another person's registered trade mark, then it is recommended you seek the advice of a professional searching company, lawyer or trade mark attorney. Visit IP Australia website for details.

An important point to remember about patents is that generally the invention must not be disclosed before an application has been filed because it will otherwise not be considered new. However, a number of countries, including Australia, provide a grace period so that in certain circumstances accidental public disclosure of an invention will not affect the validity of a subsequent patent application.

In Australia a complete application must be filed within 12 months of the disclosure but in other countries the time allowed and other conditions may be different. Visit IP Australia website for a comprehensive explanation of the grace period.


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Business Tips

Some tips on how to avoid business failure:

  • Don't underestimate the capital you need to start up the business.

  • Understand and keep control of your finances - income earned is not the same as cash in hand.

  • More volume does not automatically mean more profit - you need to get your pricing right.

  • Make sure you have good software for your business, software that provides you with a good reporting picture of all aspects of your business operations.


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