Trade Marks Act 1995

As noted in the Act, its purpose, broadly speaking, is to provide the legislative framework for the ‘registration of trade marks, collective trade marks, certification trade marks and defensive trademarks.. and sets out [the] rights deriving from registration’. The Act is supplemented by the Trade Mark Regulations 1995 (Cth).

The Act is fairly extensive and is separated into 22 major parts.

The following table is a quick overview of each part:

This will depend on a myriad of factors such as whether you already have a registered trade mark, whether you are seeking assignment of a trade mark, whether infringement has potentially occurred, the complexity of your business and so on.

However, if you don’t know much about trade marks yet; it is always best to start with Part 3 of the Act which describes (among other things) what a trade mark is/ isn’t, as well as the rights conferred on a registered trade mark owner.

Some key sections in Part 3 include:

• Section 17 which defines trade mark  as a: ‘a sign used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person’;
• Section 21: which declares a registered trade mark to be a form of personal property, with equities enforceable in the same manner as other equities in relation to personal property;
• Section 22: which provides for the power of registered owners;
• Section 23: which provides for a limitation on rights if substantially identical or deceptively similar trademarks have been registered; and
• Section 26: which outlines the powers of a registered user of a trade mark.

Once you understand what a trade mark is, you may feel more compelled to register it as in accordance with Part 7.

Further, if you have potentially had your trade mark infringed, or wish to be cautious as to potentially

infringing the rights of others, you may wish to be conscious of Part 12. In particular, section 120 which outlines when a registered trade mark is infringed and section 122 which provides when it is not infringed. By being aware of these sections you may feel more confident in enforcing your rights.