Trademark Glossary – Common Terms and Their Meanings
In order to assist business owners in obtaining an understanding around some common trademark related terms and their meanings, we’ve compiled a glossary for your convenience. While some may seem obvious to the seasoned trader, many are relatively unknown to most and may be useful for both trademark owners and future applicants.
Alternative Dispute Resolution
An alternative dispute resolution is the process of communication which can include: arbitration, mediation and expert determination. The goal is to solve disputes with the aim to avoid drawn out and expensive legal proceedings. There may be cause for an alternative dispute resolution (ADR) in a situation where one party believes their trademark rights are being infringed and both parties agree to an alternative resolution services to settle the dispute.
Authorised User
The general assumption of an authorised user, in relation to intellectual property, implies a person authorised to use the right (such as a trademark). However, it is a little more complex than that. For the term ‘use of a trademark’ to be seen as that of an authorised user, the trademark owner must be able to prove they have been exercising quality control and/or financial control around the use of that trademark and the associated goods or services. It is not enough to simply allow another party to use your trademark, in order for that party to recognised as an ‘Authorised User’.
Infringement
An infringement generally applies when a person makes use of another person’s intellectual property without their consent; where that person does not own their own IP and the unauthorised use will likely lead to confusion. Infringements are a complex area and the merits of each case needs to be reviewed on a case by case basis so as to determine whether infringement has in fact occurred.
IP Australia
IP Australia is the body that governs areas of intellectual property, such as trademarks, patents and designs (as well as Plant Breeders Rights) in Australia.
Madrid Protocol
The Madrid Protocol refers to the international treaty known as the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks. This treaty incorporates approximately 100 countries and was established to provide a simplistic, and usually more cost-effective, choice to trademark owners in one-member country to be granted international trademark registration and rights. Using this Protocol for international registration achieves the same level of trademark protection once granted in the nominated countries that would be achieved through national individual filings, but, without the need for multiple foreign attorneys and multiple separate applications.
Notice of Intention to Oppose
A notice of intention to oppose is the first document filed by a person that wishes to oppose the registration of another trademark.
Opposition Proceedings
The term opposition proceedings refers to the entire process involved when a person opposes the registration of another trademark (or, when a person opposes another’s request to remove their trademark or even involving other matters such as extensions of time). Opposition Proceedings can be lengthy and are made up of many stages.
Registered Trademark
A registered trademark is simply a registered version of a trademark (see below for an explanation). It is an asset for the trademark owner, as it is property. A registered trademark can be dealt with as you might deal with other physical properties – such as selling it, licensing it to be used by others. A registered trademark also gives the owner the right to take steps in the event that it is infringed by others.
Trademark
A trademark is any sign that one trader in the marketplace uses to distinguish particular goods/services from the goods/services of other traders. A sign can be a word/words, image, phrase, number, shape, colour, scent, sound or any combination of these things. A trademark exists whether it has been registered or not as an ‘unregistered’ trademark, or a common law trademark. Enforcing a Registered Trademark can be easier than enforcing an unregistered trademark.
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There are many terms related to the area of trademarks. Contact us for any information and assistance today.
