Australian trade mark law is based on common-law use-based rights as well as the ''Trade Marks Act 1995'' (Cth), which is administered by

IP Australia IP Australia is an Australian Government agency, responsible for administering intellectual property law in Australia. The agency manages the registration of patents, trade marks, registered designs and plant breeder's rights in Australia. ...

, an

Australian government The Australian Government, also known as the Commonwealth Government or simply as the federal government, is the national executive government of Australia, a federal parliamentary constitutional monarchy. The executive consists of the pr ...

agency within the

Department of Industry, Innovation and Science The Department of Industry, Science, Energy and Resources was a department of the Australian Government responsible for consolidating the Government’s efforts to drive economic growth, productivity and competitiveness by bringing together ind ...

. Use-based rights are less certain than registration, and depend on the mark having developed a reputation in the region in which a business owner seeks to enforce its common-law trade mark. Registration provides advantages such as constructive notice and nationwide rights. Among other things, the ''Trade Marks Act'' defines

trade mark A trademark (also written trade mark or trade-mark) is a form of intellectual property that consists of a word, phrase, symbol, design, or a combination that identifies a product or service from a particular source and distinguishes it from oth ...

s (including

certification mark A certification mark on a commercial product or service is a registered Mark (sign), mark that enables its owner ("certification body") to certify that the goods or services of a particular provider (who is not the owner of the certification ...

s and collective marks), what constitutes

trademark infringement Trademark infringement is a violation of the exclusive rights attached to a trademark without the authorization of the trademark owner or any licensees (provided that such authorization was within the scope of the licence). Infringement may occ ...

and defences and exceptions thereto, and (together with the ''Trade Marks Regulations'' 1995 (Cth)) sets out procedures for registration and other proceedings before the Registrar of Trade Marks. The legislation does not codify the law of trade marks in Australia; as a

common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

jurisdiction, a trade mark owner may also (for example) seek to protect its rights through

legal proceedings Legal proceeding is an activity that seeks to invoke the power of a tribunal in order to enforce a law. Although the term may be defined more broadly or more narrowly as circumstances require, it has been noted that " e term ''legal proceedings'' ...

for

passing off Passing off is a common law tort which can be used to enforce unregistered trade mark rights. The tort of passing off protects the Goodwill (accounting), goodwill of a trader from misrepresentation. The law of passing off prevents one trader f ...

or, more commonly, misleading and deceptive conduct contrary to the Competition and Consumer Act 2010. Section 17 of the ''Trade Marks Act'' defines a trade mark as "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".

Registration

The procedure t
register a trade mark in Australia
is much the same as in other

British Commonwealth The Commonwealth of Nations, often referred to as the British Commonwealth or simply the Commonwealth, is an international association of 56 member states, the vast majority of which are former territories of the British Empire The B ...

countries. A completed application is filed by an applicant with

. The application is then checked ("examined") by an examiner of trade marks for compliance with formalities and substantive requirements (e.g. registrability, and lack of

confusing similarity In trademark law, confusing similarity is a test used during the examination process to determine whether a trademark conflicts with another, earlier mark, and also in trademark infringement proceedings to determine whether the use of a mark infri ...

with a conflicting trade mark). Examination in Australia has (from 2019 to 2021) been backlogged. Th
Australian Trade Marks Office Manual of Practice and Procedure
is an official publication produced by

, which provides detailed information to examiners and applicants on the practices and procedures relating to the filing, examination, and registration of a trade mark in accordance with the provisions of the ''Trade Marks Act 1995'' (Cth). If an application is accepted for registration by an examiner, it will be published for opposition purposes for two months, during which time third parties may oppose registration on certain grounds. If there are no oppositions, or any oppositions are overcome, a certificate of registration will issue. The term of registration in Australia is 10 years, which may be extended for additional periods of 10 years. Failure to use a registered trade mark for a period of three years or more may expose the registration to removal from the register on the grounds of non-use.''Trade Marks Act 1995'' Part 9—Removal of trade mark from Register for non‑use
/ref>

Infringement

Infringement is defined b

of the ''Trade Marks Act'', and includes a cause of action for infringement of well-known marks.

Assistance from Customs

The

Australian Border Force The Australian Border Force (ABF) is a federal law enforcement agency, part of the Department of Home Affairs (Australia), Department of Home Affairs, responsible for offshore and onshore border control, border enforcement, investigations, comp ...

has in place
procedure
permitting a registered trade mark owner to seize goods which infringe registered trade mark rights.

References

External links

IP Australia
* ttp://www.ipta.org.au Institute of Patent and Trade Marks Attorneys of Australia (IPTA)br>Intellectual Property Society of Australia and New Zealand (IPSANZ)
{{DEFAULTSORT:Australian Trade Mark Law Trademark law by jurisdiction Australian intellectual property law

Registration

Infringement

Assistance from Customs

See also

References

External links