In past years the Australian Trade Marks Office has worked closely with patent attorneys and other legal professionals to make the cost of trade marking very prohibitive for Australian companies. This not only worked against the interests of trade marking in this country and the work of the Trade Marks Office, but also made it very difficult for Australians to protect their trade marks internationally because of the expense, and length of time and considerations undertaken by the trade marks examination process.

In recent times, with the growth of the Internet and online practices, the system has become streamlined, and it became very easy to carry out trade marking activities to assist companies to support their business names and branding with proper trade mark registration that increased their intellectual property control, management and wealth.

Recently we have noticed that the Trade Marks Office has started on a process of “knocking back” nearly every trade mark where there is a market name or generic name in the actual trade mark registration. For instance, if you engaged in innovative gardening and you wanted to trade mark the name “Innovative Gardening Activities” or “Innovative Gardening Practices”, or Innovative Gardening Landscaping”, there is a very good chance that the first report that results from the $120 fee from the Trade Marks Office will immediately say that you cannot claim a trade mark and a monopoly through the trade mark of the word “innovative”.

They may even say that the words “gardening” and “innovative” together give you a monopoly, which seems ridiculous given that you probably have the trade name registered in one or more States, and even if you don’t have it registered in all the States, then someone else will register it in another State anyway.

In addition, the practice of registering trade names through the States has become so much out of control that a name such as “Innovative Gardening Landscaping” could be changed to “Innovative Gardening Landscaping WA”, “Innovative Gardening Landscaping NSW”, etc. With a name like Competitive Edge, we have noted the number of “knock offs” that go on at the registration level.

We are now advising clients in our practices to cease putting forward words or names as a basis for trade marking because of the lengthy process and the build up to another costly system involving patent attorneys and the legal fraternity.

Instead we are suggesting that our clients put in graphics that are more eye-catching and visual, closer to modern branding technology and techniques, and avoid reference to words that can be refused by the Trade Marks Office using the pretext that you are trying to monopolise a particular area at the expense of competition.

This means that when you consider trade marking in the future, you are best to try to look for a graphic change that may involve one or two letters in the word, or the way in which you present the wording of the business name.

This could include boxing the wording, changing the slant on the wording, adding a graphic such as a leaf outline or something else, so it has a unique characteristic and cannot in any way be considered to be:

1. Monopolising the wording at the expense of the competition, because there is a graphic involved that is distinctive and unique.
2. Restrictive in that other people cannot develop a different form of graphics that will give them unique branding and as a result, a unique positioning and trade mark in the market place.
3. Preventing others from seeking alternative ways of representing their trade mark in the market place.
This also avoids the costly fee hikes that an examination by the Trade Marks Office and possible legal involvement entails.

Trade marking is an important part of modern business, just as it has always been an important part of ancient business. The signature, through the signature ring (signet ring) carried by early merchants, was their “mark” or their trade mark, and this was used to sign off documents, important shipping papers etc., and to seal deals as far back as the Merchant of Venice-type transactions referenced by Shakespeare.

Today everybody has a trade mark, and this is their signature.

Making it difficult and expensive for companies to trade mark their signature, especially when they have been operating and have a legal trading name in Australia, is restrictive and not to the benefit of Australian business both here and in a globally connected world.

It is unfortunate that this has now become a practice. We know that as the wheels of evolution turn, this will eventually be overturned and there will be a return to normality, and a clear distinction in “fee for service” roles and direct blatant revenue-raising from a registration monopoly, restored to the benefit of globally competitive Australian businesses.

In the meantime, it is a good idea to consider the use of graphics, and to tie these closely to the packaging of your branding, and your unique positioning in the market place.