Focus: New "TM Check" for business
name applicants
Services:
Intellectual Property & Technology
With the ASIC administered National Business Names Register set to commence on 28 May 2012, IP Australia has introduced a new online "TM Check" to assist Australian Business Name applicants identify potential impediments to use of their proposed business name.
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 name.
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.
