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QUESTION
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
food truck:
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
food truck:
Daniella wants to protect the branding of her new business. Answer the following questions
(and relevant sub-questions), which will assist Daniella in determining how she can best
protect her brand under the Trade Marks Act 1995 (Cth):
(and relevant sub-questions), which will assist Daniella in determining how she can best
protect her brand under the Trade Marks Act 1995 (Cth):
Continue to the next page for questions
1. What is a trade mark? What aspect(s) of her brand may Daniella seek to register under
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).
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).
[Note that this is the only aspect of this assignment that requires use of the four-
step process/IRAC method. Your response to 2(a) would consist of steps one
step process/IRAC method. Your response to 2(a) would consist of steps one
and two, while your response in accordance with 2(b) would be steps three and
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.
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.
Question 1.
What is Trademark?
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Place Your OrderDaniela 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.
The goods and services of a particular business entity can be identifiable from another by a trademark. A trademark can be a letter, phrase, business name, word, number, smell, shape, sound, shape, picture , logo and the qualities of packaging.
The trademark is the right that is got by the owner of the business for an identification of his particular goods and services and is legally enforceable. It is the brand image by which customers are able to identify a particular goods or services. A registered trademark is protected and cannot be copied. Duplicating a legally protected trademark calls for punitive action. An unregistered trademark has less protection. In Australia the registered trademark has national protection, it has visibility that is it can not be misused by the competitors. It is an asset created and with the brand image of the goods and services spreading, the trademark can be licensed or sold. Australian trade mark has lowered expenses for the enforcement in future for an international registration.
When the registration for trademark application is filed, one must choose the glasses of goods and services . These classes fall under the classes as are set in the category of agreement that is internationally accepted . There are 45 of the selected category of goods and services. Number 1 to 34 is goods and 35 to 45 cover services.
Daniela should cover her business under the services category and should classify it as food to get the trademark registered in the Australian law. She should further subcategorise it under the head restaurant to get the specification of the trademark.
2.a) The Australian patent system and the registration of Trademark act does not exhaustibly include the list of the patents and trademarks that are already owned by other business entities and there is possibility of a brand duplication. We answer the question in IRAC (Issues , Resolution, Application, Conclusion format )
The five issues of concern in the Australian trademark system are as follows.
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.
Resolution : She will have to show the papers of financial audit to the registering authorities and all papers regarding her citizenship, her ownership of the business etcetra should be cleared.
Issue second
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.
3rd issue
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).
The ownership of the business has to be established with the trademark company . It has to be registered and the documents pertaining to the ownership of the firm needs to be kept with the trademarking authority as validity for license to use the trademark. Unless the documentation is complete the trademark will not get the proclamation as “authorised to use” .Resolution
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
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
Conclusion and application
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.
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.
In all probability she is going to be getting obstruction from the company “Llamas” at Queensland, Australia who have spot for fine dining as well as trekking with the llamas . Most probably they are to give the third party opposition for the business identity, name and logo from the Llamas of Queensland. There may be other companies also which may be using the same logo of the llama. It is an animal identified with the wool, the meat and the cuisine as Daniela has mentioned so it is a little ambiguous to distinguish the type of business as such as a restaurateur.
3. Daniela has to first establish the distinctiveness of her brand image and then apply for the registration of the services under the Australian trademark act. She can do the search herself of do a third party mediator for the finding out the different obstructions that may be detrimental to registering her services under the trademark act. She will have to mend the logo either add something to the logo itself to distinguish as a restaurant or change the brand image as it may raise opposition and cause dispute from third parties.
If Daniela is insistent she may move for the arbitration under the ADR (Alternate Dispute Resolution) of the IP act and can move for getting the trade mark after resolving the particular issues of dispute and amending those. Thus she will be able to enforce her intellectual property rights and be able to use her coveted trade mark with some amendments
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.
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.
Bibliography
Top Five Trademark Issues To Consider For Your Startup - Intellectual Property - Australia (2018) Mondaq.com
Issues Paper - Patenting Of Business Systems | IP Australia (2018) Ipaustralia.gov.au https://www.ipaustralia.gov.au/about-us/public-consultations/archive-ip-reviews/ip-reviews/Consideration-of-a-position-on-the-patenting-of-business-systems/issues-paper
Australian Trade Mark Law (2018) En.wikipedia.org
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