A trade mark is a unique mark that a business uses to identify itself in the market. We commonly think of these marks as logos. A trade mark helps a business to distinguish its goods and/or services from competitors in a marketplace.
A trade mark may consist of a letter, number, word, phrase, sound, shape, logo, picture, movement, aspect of packaging, or a combination of these. While it is also possible to acquire a trade mark over something like a colour or smell, it is extremely rare.
In Australia, trade marks are governed by the Trade Marks Act 1995 and are registered with the Intellectual Property Office of Australia (IP Australia), located in Canberra. The database of registered and pending trade marks maintained by IP Australia is known as the trade mark register. The trade mark register is further divided into different classes of goods and services, which are explained later in this topic.
These familiar logos are trade marks recognised around the world.
How is a trade mark different from a company name and a URL?
It is important to note that the meaning and function of a trade mark is different from that of a company name, business name, a domain name or URL. Any interchangeable use of the term trade mark with that of a business name, domain name or a URL is incorrect or at least coincidental.
While a business may choose to adopt the same trade mark as its company name, registering a business name or a domain name would not give the business owner the right to stop others from adopting the same or a similar company name. Only a registered trade mark will give its owner the right to prevent others from using the same or a confusingly similar trade mark in a related market.
ExampleCompany name, domain name and trade mark
Betty has registered a cosmetics company by the name of TenXO Pty Ltd with the Australian Securities and Investment Commission (ASIC). She has also secured the domain name with the URL, www.tenxo.com.au and registered it with the .au Domain Administration. Her cosmetic products are marketed under the name of TenXO, which is not yet a registered trade mark.
In this example, TenXO is used as a company name, domain name and an unregistered trade mark. Even though Betty has registered the company name and the domain name, it is not enough to stop others from using the same name for cosmetic products unless Betty registers TenXO as a trade mark for her cosmetic products.
So, what is the purpose of a trade mark?
The key purpose of a trade mark is to help buyers differentiate between different brands and to avoid confusion. Trade marks assist consumers in being able to go into a shop, buy a product of their choice and know that it will always be the same.
ExampleConfident Smile
Rene likes to use a particular toothpaste named Smile. He goes to a local supermarket to buy the toothpaste. In the supermarket, there are a variety of toothpastes on display, but only one is branded as Smile. There is no confusion in Rene’s mind about the product so he makes his purchase with confidence.
