In commerce, trademarks are an indispensable asset distinguishing a business from its competitors. These identifiers can take various forms, including words, symbols, images, or combinations, such as numbers, shapes, and colours. Trademarks, classified as intellectual property, afford legal protection to their owners once registered with state authorities. This grants exclusive rights to use the trademarks for all related goods and services offered to customers worldwide.
Australia’s Trademarks Act sets forth a legal definition of a trademark in Section 17. It states that a trademark is a sign employed or intended for a person to distinguish their goods and services from those provided by others during trade. Thus, trademarks can offer businesses and individuals a necessary means of safeguarding their creations from confusion with similar items on the market.
Brands are potent tools for companies, enabling customers to identify and differentiate products from competitors readily. Registering a trademark helps protect against imitators who might attempt to use deceptively similar brands to ride on the coattails of a well-known name. Branding originates in livestock farming, where animals were marked with their owner’s symbol to distinguish them in marketplaces during trade transactions. Today, this principle applies on a much grander scale within global product markets. Brands offer consumers familiarity when selecting between different options during their purchasing journey. Over time, successful brands become associated with specific qualities that make customers more likely to buy again due to perceived positive attributes such as quality and taste. This makes trademarks increasingly vital for businesses seeking to secure long-lasting customer loyalty.
While a company can develop unregistered trademark rights through consistent use over time, proving that reputation and taking legal action against those who have used confusingly similar trademarks can be challenging. Having an officially registered trademark simplifies the defence of a brand; one is presumed valid in court proceedings with clear, enforceable rights. However, even when an IP Office has registered a mark within one country or jurisdiction, it only protects that specific area. It is only internationally recognised if further steps are taken to register the mark elsewhere. It is essential to note the difference between using ®, denoting registration, and ™, which states ‘trademark’. It might be more appropriate to utilise either symbol at different points across marketing collateral, depending on the situation.
Beyond traditional marks like names, taglines, or logos, IPAustralia also permits other distinguishing brand signs, including 3D shapes, aspects of packaging, signatures/slogans, scents/smells, sounds (including jingles), tastes, colours/colour combinations, labels, letters, headings, numbers, and movements (e.g., animations). These distinctive features should be considered when developing an effective trademark strategy to best protect business interests and stand out from competitors. This will help build value into products and services while consolidating customer loyalty over time.
A trademark registration for a word mark is invaluable to any business. It protects the words, regardless of font size, colour, or design element used in association with them. Some of the world’s most recognisable and iconic brands – such as Amazon, Mercedes-Benz, Vodafone, and BP – instantly evoke distinct images and company values when mentioned. Moreover, an organisation can register multiple trademarks for different products or services that it owns if necessary.
Device marks, such as logos and images, are crucial for businesses to protect the appearance of their trademark. For example:
Registering device marks shields against changes made to font size and variation that could be used in counterfeiting products associated with a business.
Kit-Kat: The Art of the Break and the Power of Trademarks; Nestlé’s famous slogan, “Have a break, have a Kit-Kat,” has become emblematic of moments of respite from work or study worldwide. The combination of words and images in trademarks can be valuable in ensuring comprehensive brand protection, with word marks and visual elements each offering different levels of defence against potential infringement.
Brands have embraced symbols, cartoon characters, and other devices to create memorable, emotionally resonant consumer connections, driving brand loyalty. Kellogg’s Snap, Crackle, and Pop mascots and McDonald’s Ronald McDonald are prime examples of this strategy. Obtaining colour trademarks can be challenging, but those that succeed, such as Tiffany & Co’s iconic blue and Cadbury’s purple, enjoy robust protection against counterfeiting.
Companies can also protect distinctive shapes, scents, and sounds through trademarks. Examples of shape trademarks include Coca-Cola’s bottle, Toblerone’s triangular packaging, and Toilet Duck’s duck-shaped cleaner. Lindt, known for its teddy bear and bunny packaging, has even secured rare scent and sound trademarks. However, these can be more difficult to obtain as they require proof of consumer recognition.
Sound trademarks, such as Vegemite’s ‘Happy Little Vegemites’ jingle and Intel’s five-note progression, have gained traction in Australia, while scent trademarks remain more elusive. Only two scent trademarks have been granted in Australia since 2004: Eucalyptus Radiata on golf tees and cinnamon on non-wood products. The United States has seen more unique brands, covering store scents, bubblegum-flavoured sandals, and even pina colada ukuleles.
Before pursuing trademarks for shapes, colours, packaging, sounds, or other unconventional forms, seeking legal advice from an experienced trademark attorney is crucial. They must satisfy specific requirements to be considered “unusual or distinctive” and associated with a particular product.