Free Essay On Law - Business Intellectual Property
Business Intellectual Property
Business Intellectual Property
1.) Under Section 17 of Trade Marks Act of 1995 (Cth), a trade mark refers to a signage or sign that is being used, or intended to be used for the purpose of distinguishing goods or services being offered during the course of trade by an individual from goods or services that are being offered or provided by another.
The classes of goods that Jackson should register his proposed mark “Farmer Jet’s” must be used for the Asian grocery items that are being sold in all his stores including the flagship store in Victoria Park and other business establishments that he wants to open throughout South Australia.
The grocery items of Jackson under the trade mark Farmer Jet’s will fall under Class 29 or Class 30. Class 29 refers to any meat, fish, poultry, meat extracts, preserved, dried and cooked fruits and vegetables, spread, jelly, jam, edible oils, fats eggs, milk and milk products. The grocery items offered for sale in Jackson’s grocery will fall under Class 30 for goods such as coffee, tea, cocoa rice, tapioca, flour cereals, bread, pastry, sugar, yeast, salt, vinegar, sauces, condiments and other spices.
2.) The issue is whether there are legal impediments to the registration of Jackson’s proposed marks.
After conducting a search on the Australian Trade Marks Online Search System (ATMOSS), there are no marks that are substantially identical or deceptively similar to the proposed logo or trademark of Jackson.
Under Section 120 of the Trade Marks Act 1995 (Cth), any person who infringes a registered trade mark by using as a trade mark any sign or signage that is substantially identical with or deceptively similar to the trade mark relative to goods or services in which the trade mark is registered, provided it does not deceive or cause confusion to the public.
After conducting a research on the Australian Trade Marks Online Search System (ATMOSS), there were no marks that were found to be substantially identical or deceptively similar to the proposed logo or trademark of Jackson. There are two names that are currently registered in ATMOSS and they are JetPack and 123InkJets. Both these two names are not deceptively similar to the Asian grocery items from Jackson’s store. JetPack logo has been cancelled and falls under Class 39 for courier services. On the other hand, 123InkJets is currently registered under Class 35 that covers all retail and wholesale of inkjets and all toner cartridges. 123InkJets is presently registered and protected under ATMOSS.
Comparing Jackson’s proposed mark and 123InkJets, it can be clearly shown that 123InkJets is not deceptively similar to Jackson’s proposed trade mark of Farmer Jet’s since the former mark is registered under Class 35 for retail and wholesale inkjets. On the other hand, Jackson’s trade mark falls under Class 29 or Class 30. Class 29 refers to any meat, fish, poultry, meat extracts, preserved, dried and cooked fruits and vegetables, spread, jelly, jam, edible oils, fats eggs, milk and milk products. The grocery items offered for sale in Jackson’s grocery will fall under Class 30 for goods such as coffee, tea, milk, spices and other condiments.
Jackson can adopt the name “Farmer Jet’s” that will be used to identify his start up grocery store business using the proposed image and font that he has chosen that will represent his logo to attract customers. The logo he has chosen will used in the façade of the stores, official receipts and flyers as part of his marketing strategy to introduce his new store to the public.
3.) Assuming that Jackson’s proposed mark cannot be registered because it is substantially identical or deceptively similar to another mark on the register, I will advise him to create another trade mark that is not deceptively similar to the same class of goods and services to avoid being penalized under Section 120 of the Trade Marks Act of 1995 (Cth). I will also advise him that the he should revise the name Farmer Jet’s in order to avoid being penalized since there is another trade mark or signage that is already currently being used to identify the same set of goods or services of an existing business and being offered by an individual. Thus, it will be inappropriate if he will be using a similar trade mark that is already known to the public. The rationale behind the violation under the law is to avoid confusing the public for another product, good or service that is already in place.
However, under Section 23 of the Trade Marks Act of 1995, any individual or person who shall use a registered trade mark in connection to the goods that are alike or akin to goods to which the trade mark has been registered will not be considered as infringement if the said trade mark has been applied to the goods after obtaining the consent of the registered owner of such trade mark in issue. This is the exception that is allowed under the law.
Jeremy Philips, Trade Marks at the Limit. UK: Edward Elgar Publishing, 2006.
Section17, Section 23 of Australian Trade Marks Act of 1995 (Cth)