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When is Trade Mark Infringing

There are many circumstances where the use of a logo, image, word, phrase or other form of mark may be infringing on a registered trade mark. However, it can sometimes be difficult to comprehend or identify when infringement occurs where it is not clear if the alleged infringing mark is actually being used as a trade mark.

Pursuant to s 120 of the Trade Marks Act 1995 (Cth) (“the Act”), a person can only infringe a registered trade mark. Therefore, if a person uses a trade mark but has never taken steps to register the trade mark with IP Australia (and obtain registration), they do not receive the protection and exclusive right provided by the Act to make a claim and/or prosecute infringement of their trade mark. [...]  READ MORE →

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Seeking Damages for Unauthorised Use of a Trade Mark

A recent Federal Court case has taught a valuable lesson in seeking damages as a remedy for infringement of a trade mark.

In the case of Halal Certification Authority Pty Limited v Scadilone Pty Limited [2014] FCA 614), the Halal Certification Authority sought damages under section 236 of the Competition and Consumer Act 2010 (Cth) (“the Act“) against a wholesale distributer and a number of kebab shops for unauthorised use of a trade mark asserting that kebab meat used by the kebab shops was certified ‘halal’ meat. [...]  READ MORE →

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English High Court takes a Break in Kit Kat dispute

The chocolate wars continue with arch-rivals Nestle and Cadbury embroiled in another legal battle. With round 1 going to Nestle with its win in Cadbury’s bid to trade mark the colour purple, the tables have now turned, with Cadbury opposing Nestle’s application to protect the shape of the popular Kit-Kat. The case was heard before the English High Court, who took a Time Out from the decision making process and referred the matter to the European Court of Justice (CJ).

It is now up to the Smarties at the CJ to decide, in regards to registering shapes as trade marks, whether: [...]  READ MORE →