Trademarks: Public Goodwill And Brand Assessment Answer
Answer:
Introduction:
Trademarks are considered to be most valuable assets for some of the organizations. The distinctive marks are used mostly to build public goodwill and brand reputation. The trademark is used to distinguish between different goods of the industry. In Australia four different types of trademarks can be registered under Trade Marks
Act, 1995. The four trademarks are as following;
- Standard Trademarks
- Defensive trademarks
- Certification trademarks
- Collective trademarks
About Trademarks:
According to section 44 of the said act, the trade marks will be rejected is applied trademarks resembles to registered trademarks or trademarks for which application is made related to similar or closely related goods. The trademark office will look into the fact that whether the trademark is “substantially identical”. The test for assessing the identical trademarks are found in case of Shell Co. (Aust) Ltd v Esso Standard Oil (Aust) Ltd (1963) 109 CLR 407 at 414–415. Here it was accepted that marks are substantially identical and similarities and differences noted and should have the essential features of unregistered marks (Mackie & Keeffe, 2016).
The act is applicable to the all states of the country. The acts will extent to all of Australia. According to section 4A of the act, Criminal Code will be applied to all offences created under this act. According to section 10 of the act, resembling marks of two different businesses can cause confusion among the business. In reference to the deceptive similarity, when substantial identity, the marks is to be looked from different prospective not from side by side.
According to the case “Australian Woollen Mills Ltd v F S Walton & Co Ltd (1937) 58 CLR 641”, the necessary attempt is required to understand and to assess effects of the similarity of impression has produced in minds of ordinary person. The necessary part of the assessment is to show real tangible danger occurred due to deception or confusion may not be sufficient but the assessment of the impact of the mark to the normal person is to be identified (Austlii, 2016).
Conclusion:
The confusion has to be answered in relation to the deception, confusion and the similarity of marks. The act also considers the fact that goods and services claimed in the application are closely similar or resembles to earlier registered or applied marks of the same goods and services. The case of Jellinek’s Appn (1946) 63 RPC 389 should be drawn here for the understanding of the points, the characteristics of the goods and the service and the quality of the goods and services produced by two different manufacturer has to be looked into. It is also to be seen that whether the goods are sold by the same trade channels or not. The same description does not mean that goods have to be similar in nature. Registration of the trademarks is challenging parts of the business and it should include consideration of the due factors during registration of the marks. The factor of closely related goods is also to be considered (Inta, 2016).
References:
Austlii, 2016. Trade Marks Act 1995. [Online] www.austlii.edu.au Available at: https://www.austlii.edu.au/au/legis/cth/consol_act/tma1995121/ [Accessed 13 September 2016].
Inta, 2016. Trademark Basics. [Online] www.inta.org Available at: https://www.inta.org/Media/Documents/2012_TMBasicsBusiness.pdf [Accessed 13 September 2016].
Mackie, J. & Keeffe, D.L., 2016. Austrailian Trade Mark System. [Online] www.ipo.org Available at: https://www.ipo.org/wp-content/uploads/2013/04/AGuidetoAustralianTrademarks.pdf [Accessed 13 September 2016].
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