What is a Trademark?

2 November 2009

What is a Trademark and a Brand?

In order to answer the question “what is a trademark?” it’s necessary to understand what trademarks are for. Trademarks distinguish the goods or services of one trader from those provided by its competitors: the clothes of Sass & Bide from those of Zimmerman … the electronics of Bang & Olufsen from those of Sony.

Not only that, when combined with the power of branding, trademarks can create a range of emotional and intellectual responses that make us choose one product or service over another: if you’re buying a pair of jeans, would you buy Versace or Levi’s? If you’re buying a car, would you want a Porsche or a Bentley?

Registered and Unregistered Trademarks

Trademark rights arise either through registration or through use in certain circumstances (giving rise to “unregistered” or “common law” trademark rights). Although there are very good reasons to register your trademark, even unregistered trademarks enjoy some protection at common law and under legislation such as the Trade Practices Act 1974.

Different Types of Trademarks

More often than not, when people think of trademarks they think of names and logos. However, trademarks can be registered in relation to any “sign”. The term “sign” is defined in the Trademarks Act 1995 as including:

“… any letter, word, name, signature, numeral, device, brand, heading, label, ticket, aspect of packaging, shape, colour, sound or scent”

It can be seen then that trademarks can embody almost any element that a marketer would describe as being part of a brand.

The easiest way to answer the question “what is a trademark?” is to use examples. Here are some examples of registered trademarks that form part of iconic brand identities:

1. Basic “Word” or “Name” Trademarks

A trademark was traditionally used as a “badge of origin”: a mark or sign that would tell purchasers exactly who had made the particular product they were about to buy. Today, the largest companies in the world value the goodwill that’s embodied in their names in the hundreds of millions of dollars. Examples of “name” or “word” trademarks include:

  • “Apple” (Reg. No. 490139)
  • “McDonalds” (Reg. No. 326540)
  • “Qantas” (Reg. No. 289938)
  • “Dolce & Gabbana” (Reg. No. 548313)

However, trademarks aren’t limited to the names of companies that produce products and provide services. Often, individual products or services offered by traders have their own names registered as trademarks. To use examples from the companies above:

  • “iPod” (Reg. No. 890681) and “iPhone” (Reg. No. 1186456)
  • “Big Mac” (Reg. No. 271330) and “Deli Choices” (Reg. No. 1018273)
  • “Qantas Cityflyer” (Reg. No. 878922)

2. Phrase or Slogan Trademarks

Marketing phrases and slogans can be as readily identifiable as the names of many businesses, and therefore can be used as trademarks in their own right:

  • “Which Bank?” (Reg. No. 737715)
  • “Pay less, pay cash” (Reg. No. 1084055)
  • “My Store” (Reg. No. 1105785)
  • “Glass and a Half” (Reg. No. 1279754)

3. Stylised “Word” or “Name” Trademarks

These types of trade marks involve displaying a basic name trade mark consistently in a particular font or with a particular look:

Coca Cola: Reg. No. 357344 Disney Baby: Reg. No. 1171814 Virgin: Reg. No. 452565

4. Device or Symbol trademarks

In times when a large portion of the population was illterate, traders often used symbols to mark their goods and services. Today, symbols (or more correctly “devices”) retain their power to signify brands:

Nike Swoosh: Reg. No. 284352 Mercedes Benz: Reg. No. 70712 Shell Logo: Reg. No. 223086

By now, you should be getting a good idea of what is a trademark. The above examples are the more common types of trademarks, and the ones below are more “exotic”.

5. Characters

This category is really just a specific type of “device” or “symbol” trademark. Nevertheless, the use of characters has long been a successful marketing strategy, and today, many of the world’s leading companies use characters to sell everything car tyres, to bed spreads to food:

Michelin Man: Reg. No. 225861 Snoopy: Reg. No. 363506 Frosty Boy: Reg. No. 336648

6. Colour Trademarks

Trademarks for colours are quite rare, and although they were technically registrable under the old Trade Marks Act (passed in 1955), IP Australia’s database only shows around 200 registered colour trademarks nearly 55 years later. Most of these colour trademarks involve a combination of more than one colour, or colours combined with other elements (see below), but here are a few notable examples:

National Breast Cancer Foundation, Pink: Reg. No. 1172710 Cadbury, Purple: Reg. No. 1120614 Orange (Telecom), Orange: Reg. No. 820449

7. Shapes and “Aspects of Packaging”

Trademarks for shapes and packaging are becoming more common, especially when combined with other types of elements such as colour or a logo etc.

Kraft Foods Toblerone Box (Reg. No. 706788) Weber Kettle Barbecue (Reg. No. 703633) Coca Cola Classic Bottle (Reg. No. 767355)

8. Scent and Sound Trademarks

These are the rarest of a rare bunch. Only one trademark for a scent or smell was registered in the first 14 years of the Trade Marks Act 1995: a eucalyptus scent used in relation to golf tees (Reg. No. 1241420).

“Sound” trademarks are a little more common, and some of the most notable examples include:

  • The “ping” in “Ah McCain [PING] You’ve done it again” (Reg. No. 759707)
  • The sound of the “Dolmio” jingle (Reg. No. 796747)
  • The “Mr Whippy” van sound (Reg. No. 876931)
  • The “Happy Little Vegemites” tune (Reg. No. 941361)
  • The “Yahoo!” yodel (Reg. No. 827728)

9. Combination/Composite Trademarks

These involve combining two different elements to come up with a new sign. The most common of these are “logo” trademarks, which frequently combine a word or name with a device or symbol:

Starbucks Coffee: Reg. No. 510568 LG: Reg. No. 657841 BMW: Reg. No. 102498

However, any of the above trademark types can be combined. For example:

  • the “Yellow Pages” trademark has been registered as a combination of a device (the two fingers walking), a colour (yellow) and a name (“Yellow Pages”)
  • Tiffany’s has registered a stylised name (Word) with its distinctive blue box (shape)
  • Surf Life Saving Australia has registered the iconic caps worn by its life savers (shape and colour)
Yellow Pages (Reg. No. 820731) Tiffany box (Reg. No. 657841) Live Saver’s Cap (Reg. No. 780742)

Consider Registering your Trademark

So … what is a trademark? A trademark can be anything that makes up your brand. Magnum IP Legal Services is a firm of intellectual property lawyers who offer a variety of trademark registration services, including standardised packages and custom services for difficult or unusual trademarks. There are many advantages to registering trademarks. Why not contact us today?