Laws in Australia

Trademarks are all around us, they are present from the moment we wake up in the morning. We can find trademarks everywhere we look; they can be seen on the television, on billboards, on everyday products that we see throughout the day such as on our telephones, laptops, food packaging, motor vehicles etc. Reality is whether we approve of them or not Trademarks play a major role in our daily lives. Over the past few years foul language and sexually oriented content have become a norm in advertising, thanks mainly to mainstream media.

This has also influenced the area of Intellectual property law and registration of trademarks; which has led to an increase in the amount of profanity and sexually oriented trademarks. [1] As a result, the validity and registration of trademarks has been tested with greater frequency in regard to what constitutes a scandalous or immoral trademark. In Australia there has been an increase in the number of trade mark registrations which contain potentially offensive material.

This can be highlighted by the somewhat recent acceptance of the registration of the words "Look Good+Feel Good=Root Good"[2] as a valid trade mark, which raises questions on whether there is a changing approach to potentially offensive trademarks due to shifting public views about what is considered offensive based on society’s current moral standards. The main safeguard for potentially offensive and scandalous trademarks is Section 42(a) of the Trade Marks Act 1995 (Cth) (The Act)[3], which provides for rejection of a trade mark for registration if the proposed mark contains or consists of scandalous matter.

But the real question is what exactly qualifies as consisting of “scandalous material”, when is it too scandalous and going over the line, especially since what was held to be scandalous 10 to 20 plus years ago, is probably not viewed in the same context in current times. What is a Trademark and why even use them? It was said by German brand design legend Walter Landor[4], products are made in the factory but brands are made in the mind.

This is true in so many different ways, as through proper and effective branding it is possible to bring life / identity and personality into a product or service. This is where Trademarks come in to play; in its most basic form a trademark is essentially a “sign” that distinguishes your goods or services from those of other businesses. [5] A trademark can be said to be a sort of sign used within trading/commercial activities by a producer or vendor to identify a particular product or service. In other words, it is a

‘Distinctive sign” that enables goods or services to be more or less consistently differentiated, and it enables consumers to distinguish between different goods and recognise their origin. These features make trademarks an extremely useful business and marketing tool. According to section 17 of the Act,[6] a trade mark is a sign used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person.

A trademark can be a word, phrase, symbol or design, or combination of words, phrases, symbols or designs used in the course of trade which identifies and distinguishes the source of the goods or services of one business/ provider from those of others. In this sense a trademark can be used for multiple reasons, its primary function is to signify the origin of goods or services, but it can also be used as an indicator of the quality/standards of a product as well as a method for advertising.

This means that consumers can distinguish products/ services through their trademarks in order to choose among competing brands and will come to rely upon the fact that goods and services sold under a particular trademark originate from the same source as they have always done, so that even if a mark is used on a variety of products, ultimately some person or enterprise is responsible for their consistency and quality. [7] For example, "Toyota", as well as the logo associated with it is the trademark of the Toyota Motor Corporation; the Toyota trademark is an internationally recognized well-known trademark.

In a recent survey conducted on customer satisfaction for motor vehicles; Toyota topped the survey as its brands are the most reliable according to consumer reports. [8] As a result of this all other brands within the Toyota trademark such as Scion, Toyota and Lexus swept the three top spots in Consumer Reports annual reliability survey, which analyses subscribers’ experiences with 1. 2 million new vehicles to predict future reliability. This shows how consumers react to a trademark and associate a sense of quality and safety when considering other brands within one service provider.

For these reasons it can be concluded that a trademark is very valuable to a business, by registering a trademark under IP Australia it will prevent other persons/ companies who produce goods or services of similar style and function from using the marks for their benefit. Laws in Australia allow you to protect your distinctive brands as trademarks; this enables prevention of consumer confusion as well as to protect your reputation and quality assurance. A registered trade mark is legally enforceable and gives you exclusive rights to commercially use, licence or sell it for the goods and services that it is registered under.