With the ASIC administered National Business Names Register set
to commence on 28 May 2012, IP Australia has introduced a new
Check" to assist Australian Business Name applicants
identify potential impediments to use of their proposed business
Confusion as to what rights are conferred through registration
of trade marks and business names is one of the more frequent
queries that we receive.
Whereas a registration of a trade mark in Australia grants the
owner of that trade mark the exclusive proprietary right to use the
trade mark for the goods and/or services for which it is registered
in Australia, a business name is only recognition of a trading name
and does not provide the owner with proprietary rights to that
IP Australia's "TM Check" is a step in the right
direction (but not a complete solution) and will certainly raise
the level of awareness of the difference between trade mark and
business name registrations.
As noted by IP Australia: "TM Check is a simplified search
for trade marks that have been applied for or registered with IP
Australia. It is intended to provide the user with an indication
only - being simplified it does carry some risks. In particular,
please be aware that a search using TM Check will return a maximum
of 10 results, even if there are more trade marks that match your
search criteria"."TM Check" is not intended as a
substitute for a search of the Australian Trade Marks Register
using IP Australia's Australian Trade Marks Online Search
System or ATMOSS database.
In addition to searching the ATMOSS database, it is essential
that a comprehensive search of statutory and common law resources
be conducted prior to use in Australia.
Whereas "TM Check" and a search of the ATMOSS database
may reveal registered or pending trade marks, it is important that
due consideration also be afforded to unregistered or common law
use of trade marks. This is because such use can result in third
parties having rights to take action under the Australian Consumer
Law or the common law tort of passing off.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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