Trademarks1 are an important aspect in protecting the goodwill of a business by protecting marks associated with a business from being used by competitors. A trademark is not necessarily just a logo it can also be a word, phrase, sound, smell, colour, movement or picture. Trademarks which are commonly recognised are the Mcdonald's big 'M', or the Nike slogan 'JUST DO IT'.
Trademarks are not always easily registered as other competitors may dispute their registration or the mark may already be trademarked. A recent example of the difficulty with trademarks is a dispute between Australia and New Zealand honey producers over the term "Manuka" in relation to honey.
Manuka honey
Manuka honey2 is a valued product claimed to be a superfood and to also have medicinal properties. The term "Manuka" is the Maori word for the plant that the honey comes from. It is not only produced in New Zealand but also in Australia.
Australian honey producers have been exporting Manuka honey for over a decade however they may now be prevented from doing so in China if the New Zealand Manuka Honey Appellation Society3 ("Society") establishes the right to trademark the term "Manuka" within China. The Society have already failed to register the trademark in the United Kingdom and Europe.
China has a 'first-to-file'4 rule meaning that the Society may be successful in registering the trademark in China and preventing Australian companies from exporting honey branded as 'Manuka' to China. Australian honey producers could continue to sell Manuka honey in Australia and other countries however they would be unable to do so within China which could have devastating effects on the Australian honey industry.
Australian trademark laws and how this relates to your business
Whilst you may not be looking to register your trademark in China, you may need to protect it within Australia. Australia does not have the same regulations around trademarking as China. If a trademark is not registered in Australia then you may have a common law claim over the mark if it has already been used by your business extensively however a common law claim can be difficult to prove. Having a registered trademark makes it easier for you to take legal action to prevent others from using your mark.
It is important to be aware of the limitations of rights when a trademark has not been registered and what your rights are in relation to a registered trademark.
Footnotes
1 https://www.ipaustralia.gov.au/
2 https://thenewdaily.com.au/life/wellbeing/2018/03/23/manuka-honey-spin-versus-science/
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.
