What can I register as a trade mark?
You can register a letter, a word or combination of words, logos, graphic representations of your get up, slogans, shapes, colours, even scents and sounds can be registered as trade marks provided that they are capable of distinguishing your goods and/or services from those of other traders.

What would be difficult to register as a trade mark?
The general principle is the more likely it is that another trader would want to use that particular word or sign in relation to their products or services, the less likely it is that it will be capable of distinguishing your goods, and thus, less likely to be registrable without significant evidence to the contrary.

The category of words and phrases that are generally not capable of registration are words that suggest:

• kind;
• quality;
• quantity;
• intended purpose;
• value;
• time of production;
• geographic origin; and
• surnames.

What Protection can I get if I register my trade mark?
As the registered owner of a trade mark you are entitled to the exclusive right to use that trade mark in Australia. Further, you would be entitled to relief if the trade mark has been infringed. The relief available under the Trade Marks Act 1995 (Cth) is much easier to obtain due in part to the fact that the owner of registered mark need not prove reputation in the same sense as is required under the common law action of passing off. This is a great advantage to you as registered owner of the trade mark.

What are trade mark Classifications and why are they important?
All goods and services are divided into 45 classes - 34 for goods and 11 for services - by "The International Classification of Goods and Services", a listing maintained by the World Intellectual Property Organisation (WIPO).

When you apply for a trade mark you need to nominate the classes of goods and services you would like the trade mark to be registered for. This is important as you cannot generally apply for trade marks you do not intend to use. It is therefore important to properly assess what goods and services you are likely to need registration for. Your trade mark rights for infringement will be dependent on this aspect of the registration as noted below.

When will a trade mark infringe my registered trade mark?
In general terms, your registered trade mark will be infringed if it, or a trade mark which is deceptively similar to it, is applied to the same or similar goods or services for which your registration has been obtained. You do not need to prove any reputation or likelihood of deception or confusion when the infringing goods or services are the same as the registered goods or services.

However, if the same trade mark is applied only to similar goods or services to those you have registered, you will need to prove that people would be likely to be deceived or confused when they encountered the infringing mark.

There is also extra protection for "well known marks" such that even if their mark is applied to totally unrelated goods and services infringement occurs if they can prove that the use of the trade mark would be likely to suggest a connection between those unrelated goods or services and the owner of the well known mark and that the interests of the owner are likely to be adversely affected.

What constitutes deceptive similarity?
A trade mark is likely to be deceptively similar to another if it is so similar that its use would cause real confusion in the minds of consumers as to whether the two sets of products or the products and services in question come from the same trade source.

The factors the Court have taken into consideration include:

• a visual comparison of the trade marks;
• an aural comparison of the trade marks;
• the type of customer who would buy those goods;
• the way the goods or services are offered for sale and how this will affect the likelihood that the marks will be confused;
• the concept or idea that will stay in the purchaser's mind after viewing the trade mark.