Putting your own products and services on the trade market can be daunting. Trademarks are key to ensuring that your creation is distinguishable and protected. But what happens when you find that your name and logo have already been registered? You need to search for a trade mark, through a system previously known as ATMOSS. Legal Kitz has drafted the following blog to help wrap your head around these tricky terms.
What exactly is a trademark?
A trademark is a sign that can include words, phrases, slogans, numbers, letters, movement, packaging, sounds, smells, images or a combination of these elements. A trademark distinguishes your product from another and is clearly identifiable to consumers. The owner of the trademark can be an individual, business, organisation or any other legal entity.
A common misconception by new traders is that a trademark is the same as a business name. To clarify, a trademark will not include a company name, domain name or even a design. Protecting company or business names should be done through the Australian Securities and Investments Commission (ASIC) and a domain name should be registered by a private internet company and the au Domain Administration.
What is the purpose of searching and applying for a trademark?
A trademark search should always be conducted on the register before you apply for a trademark in Australia. To prevent disappointment, we recommend doing a trademark search as soon as you consider your branding. Traditionally completed via ATMOSS, a trademark search will display any registered or pending trademarks on the trademark register for your products or services that might be cited against your trademark application.
It can also show trademark registrations that you may infringe if you were to use particular names or logos on your chosen goods and services. A search of common law brands should also reveal use of a ‘trademark’ by traders without the benefit of registration. These common-law brands may be used to oppose the registration of your brand.
It is important to ensure you always use qualified professionals to conduct searches of the registers. The registrations are territorial which means that you should conduct brand research in each country you wish to manufacture, use or sell your goods or services. Even if the results seem sufficient, never assume that your trade mark will not be objected.
If someone officially opposes your trade mark, Australian Trade Mark Search will send you a notice and request you defend your trade mark’s removal. Before applying for a trademark, you should also ensure that you are eligible to do so. Going through these steps and registering your trademark will provide you with exclusive rights to use, license and sell a creation, as well as adding value to the marketing of your creation.
How did people previously conduct trademark searching?
Trademark searching was formerly conducted on ATMOSS. Those familiar with the ATMOSS site would know that conducting a trade search began with entering yourself as a guest. Then you would see a basic search page with fields to fill out including word/image, class/es, trademark status and trademark number range. When searching for your name, you would mainly use the fields for word/image and classes.
You would need to choose the right class or category from 45 different options. For example, if you wanted to trademark the name for your gym, you would need to pick a class relating to gyms/fitness and possibly also a class for the sale of clothing if you decided to sell gym clothes branded with your gym. Choosing classes should relate to your main activity, otherwise costs very quickly increase.
Using a drop-down menu on the retrospective site, users could also choose to only show trademarks that had a pending, registered or renewal status. As you can tell, the ATMOSS platform was complex and multi-layered, and the Australian Trade Mark Search is a far more streamlined alternative.
How do you use Australian Trade Mark Search (previously ATMOSS)?
Using Australian Trade Mark Search can help you find:
- Whether the name or logo you want to register is already in use;
- If your new product name or logo can be protected by trademark registration;
- If similar registered trademarks are in the market; or
- If there are pending applications for trademarks that may conflict with yours.
Quick Search is the default home page of the Australian Trade Mark Search, but you can also choose to use Advanced search. On these pages you can search across trademark words, owner names, trademark numbers, International registration numbers or even an image in an image comparison search. Unlike ATMOSS, you do not need to first set a name and password or enter as a guest.
As you are using the new search service you can also create a list of records and searches which you can save using a drop-down arrow icon next to the bell icon and search bar at the top of the page. To do a comprehensive search on the Australian Trade Mark Search, you need to find trademarks that are deceptively similar and substantially identical. If you do not find these, you may find yourself with an email accusing you of infringing on another trademark; something that no one wants!
What if I find a trademark similar to mine?
If you find a trademark similar to yours which already exists, try not to worry. It may be possible for both trademarks to coexist if the goods and services they relate to are different. If the subjects are considered to be different goods, with different purposes and sold through different trade channels, there is no real tangible danger of confusion. However, if they are closely related to yours and their trademark has an earlier filing date than yours, you may have to reconsider your logo or creation in a way that can co-exist with existing trademarks.
After you conduct a search and are confident to submit an application for your trademark, you will be given a priority date. It then goes through an examination process where you can address and resolve any pending issues. Given that no oppositions are received, you will then be able to register your trademark and protect your creation. It is important that you actively use your trademark in the course of trade.
In rare circumstances where companies neglect their trademark, an application can be made for removal from the register. This is known as the ‘use it or lose it’ approach. Once registered, your trademark lasts for ten years from the filing date. Renewing your trademark can be done between 12 months before the renewal is due or up to six months after the due data with extra fees.
Don’t stress, Australian Trade Mark Search will send you a renewal reminder so as long as all your contact details are up to date, you will be notified when this needs to occur.
The change from ATMOSS can be confusing, so if you need further assistance our legal team can help point you in the right direction. We offer a FREE 30-minute consultation for any legal queries. Book here now.