Trademark Lawyer Melbourne
A trademark may be defined as a sign or symbol that identifies one business or organisation’s products from those of a competitor, or any other trader. Trademarks require registration with IP Australia in order for them to be enforceable, although unregistered trademarks still have some legal protection against passing off or deceptive conduct by other entities. Upon registering a trademark with IP Australia, the entity that registered it is awarded the exclusive right to use that trademark for commercial purposes.
Trademarking is an important step towards creating an effective and recognisable brand. It ensures competitors are unable to use your brand for their own commercial gain, as well as preventing your brand from being associated with the actions of other companies without your knowledge or consent.
Establishing a trademark is an important step for smaller businesses. It is an effective way of expressing legitimacy to customers, investors, and other key stakeholders. Your trademark might be a word, letter, business name, smell, shape, logo etc. Anything that distinguishes your particular brand from competitors or other businesses can potentially be trademarked.
The process of registering a trademark can be a lengthy and potentially costly one, but is well worth it if you wish to establish a strong brand. You may wish to hire a lawyer who specialises in intellectual property to assist you when lodging an application.
You will first need to ensure that no other business has trademarked whatever it is you are using. This can be checked by carrying out a trademark search, perhaps with the assistance of an intellectual property lawyer. Once this has been carried out and you have submitted your application to the government, you will need to wait approximately 4 months. The long wait involved in processing means that it is important that you identify any problems up front if you can in order to save time and money.
When filing the application you will need to check whether or not your products fall within the bounds of a list of 45 classes of goods and services. This list was created under international agreement, so almost all goods and services are represented within its classes. You may require assistance from an intellectual property lawyer in deciding which class best suits your application requirements, as selecting the wrong class can complicate the process significantly. For assistance, contact LGM Advisors today and speak to a trademark lawyer Melbourne on (03) 9832 0608 or by email at firstname.lastname@example.org.
Once submitted to the Trade Mark Examiner, your application will be checked to ensure that all filing requirements are satisfied and that your trademark is eligible for registration.
During processing, the following will be considered by the Trade Mark Examiner:
- Whether or not the trademark distinguishes your goods or services from those of other businesses;
- Whether or not it conflicts with an existing trademark – this is why it is important that you undertake an independent trademark search with the help of an intellectual property professional before submitting your application; and
- Whether or not the trademark is prohibited.
If you application is approved, you will be sent a Notice of Acceptance. Upon receiving this, your trademark will be registered upon payment of final fees. The minimum time period in a normal, straightforward trademark application is about 7.5 months.
Once granted, a trademark is protected for 10 years from the date that the application was filed. You are able to renew the trademark at the end of each 10 year period of it is still being used.
Trademarks that go unused for lengthy amounts of time are liable to be removed, as they are no longer distinguishing any products or services on the market.
Once your trademark is advertised, other individuals or entities will have 2 months to file a notice of their intention to oppose it.
Should opposition arise you may be able to have the case overturned if your trademark application was thoroughly researched and checked by an intellectual property lawyer and everything was in order.
If someone does bring a case against your trademark advertisement, you should seek legal advice to ensure that you are not forced to withdraw the trademark.
Trademarks that are likely to be misleading, deceptive, scandalous, or that contain illegal content are prohibited. There are also certain signs or symbols which cannot legally be trademarked, such as the Olympic Rings or the flag or seal of a state.
Trademarks are considered scandalous if they are deemed to be genuinely offensive. Something that is merely rude or made in poor taste may escape this definition. Generally for something to be deemed truly offensive it must include elements that are abusive in a religious, personal, racial, sexual, or otherwise bigoted way.
Deceptive or misleading trademarks are those that contain information that is portrayed up-front as being genuine, which is in fact not. For example, a trademark that includes a domain name not owned by the business registering that trademark would be considered deceptive or misleading and the trademark would not be granted. Similarly, it is considered deceptive to use the name of an individual or entity in a trademark without their official endorsement, as this would suggest an affiliation without there actually being one.
If there are problems found in your trademark application, and it is not deemed registerible, you will receive an Adverse Report detailing the reasons for this decision.
Adverse Reports are issued following the initial processing period (about 4 months), the same time as a Notice of Acceptance would be issued for a successful application. Adverse Reports are usually issued if a trademark conflicts with another that is already registered or if the trademark is not seen as an automatic distinguisher of the applicant’s goods and services.
Due to the long processing period, it is very important that you have your application checked by an intellectual property lawyer before submission to ensure you do not receive an Adverse Report.