Daniela is starting a catering business that specialises in Peruvian food. She largely caters for
private events and parties, but has aspirations to run a food truck serving the same kind of
food. She initially calls it Dani’s Peruvian Fine Foods, but decides to come up with something
shorter and more memorable. She settles on the name “The Tasty Llama”. She also draws
the following logo (Figure 1), which she will apply to her food packaging and potentially her
(and relevant sub-questions), which will assist Daniella in determining how she can best
protect her brand under the Trade Marks Act 1995 (Cth):
the Trade Marks Act 1995 (Cth)? In which class of goods/services and with what
description of goods/services should Daniella register her proposed mark(s)?
(4 marks, 300 – 400 words)
2. Do existing marks on the trade mark register pose as an impediment to the registration
of Daniella’s proposed mark(s)?
Please respond to Question 2 by taking the following steps:
(a) Explain why Daniella should be concerned about existing registered
trademarks. State the relevant legal issues and explain the applicable rules.
(b) Conduct a search on the Australian Trade Mark Search portal. Choose ONE
registered trade mark that is most likely to give rise to concerns, and apply the
law identified above in (a) to the facts. Please then conclude on whether
Daniella is likely to be able to register her proposed mark(s).
step process/IRAC method. Your response to 2(a) would consist of steps one
four. See the explanation of the IRAC method under Submission Instructions]
(8 marks, 700 – 900 words)
3. Assume that Daniella’s proposed mark(s) cannot be registered under Question 2. How
should Daniella proceed in order to register a trade mark for her new business? Please
suggest practical alternatives that may be open to her.
What is Trademark?
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Daniela should register her business under the The Australian Trade Marks Act (Cth) 1995 to prevent the possibility of a duplication of her services and also to establish her services of restaurant as a brand.
Issues firstly :
Daniela will have to establish herself as the first owner of the services. This is not going to be a problem for her. However she will have to get the details of the ownership clear with the papers at hand which will be proof of her ownership of the business. She should be able to establish herself as the sole owner of the business and will have to keep in place the registration details of the business.
The trademark may be rejected on the ground that it is not able to distinguish the goods and services of a particular brand from another. Here Daniela may face some issues because she has not mentioned in the trademark about the uniqueness of her services. In fact there are various negative aspects marked in the Trade Marks Act 1995 (Cth) that outline when trademarks are not able to make the difference between goods and services of one business entity from another . The symbol that she is using is that of a Llama that may be word or symbol which is descriptive and not fully symbolise the quality of the product for the intended service. It may have duplication issues also. Daniela has in no way been able to identify that her business is of a restaurant. The tasty llama does not mean a restaurant , it means the meat of a llama which can be either the llamas meat served raw to the customers or the llama sold to the customer. It does not identify a restaurant as such and does not specify the food service of the restaurant which serves multi-cuisine.
Resolution of second issue
She has to identify a brand specific to becoming identifiable with the service of a restaurant.
There may be any third party opposition in the registration process, Trade mark applications are advertised for opposition purposes to check if there is any infringement of patent or duplication of trademark . This particular trademark can be opposed by and any third party who is interested on the trademark. There are a variety of ground where the opposition can set obstructions to acquiring the trade mark under the Trade Marks Act 1995 (Cth).
So this is possibly not a problem area for Daniela. All she needs to be concerned about is about the distinctiveness of her brand and the third party opposition
The application of the resolution has been clearly stated above as to what should be the course of action for Daniela is to establish herself for the owner of the services., keep her papers clear and show to the trade mark registration authority of Australia, make the brand trade mark more unique and identifiable with the business and distinguishable for the restaurant business that is being done.
2b) Daniela is going to face opposition for the same that her business is not having the distinctiveness of the goods and services that is going to give her an identity of the business .
The logo does not specify the restaurant business that she is going to do or whether it is the meat of the llama she is going to sell or the llamas farming. She has to be distinctive in pronouncing the motto of her business as the restaurateur.
as may be suggested by the ADR process. It is suggested that Daniela enforce her IP rights on multiple jurisdiction or throughout the country to save her trademark and protect it from future hassles of being copied or duplicated.