To file for Trademark Copyright Infringement, you need to first assert intellectual property over a trademark. This is not as simple as it sounds.
There are a few criteria that come into play:
- You need to demonstrate ownership of the Australian trademark rights of a particular trademark, or permission on behalf of the trademark owner, as licensee, franchisee etc.
- The person infringing upon the copyright is doing so by replicating the entire, or a substantial amount of the owner’s business name, and has committed the act of business name infringement
- The infringing person/party created the trademark without receiving formal license from the IP owner.
- Further, you also need to show that the infringement is being done in identical or similar classes of products as the one you are in, and can cause consumer confusion.
Proving your rights
Unlike physical property, over which you have indefinite rights upon ownership, there is the possibility of intellectual property rights ceasing over time. For the maintenance of indefinite trademark rights, you will need to invest in regular renewal fees. This will serve as a formal defence against infringement. If you lose your trademark (upon expiration of registration), other parties can swoop in and attempt to register it, completely in accordance with IP Australia law. Or, they can simply begin using it.
The first thing you need to do is to show a registration copy certificate to confirm that you have the rights over a trademark, with valid registration. This also empowers you to act against infringing parties. If you are acting on someone’s behalf, you also need to know written assignments of that IP interest to you from the IP’s original owner. If there is transfer of titles, you need to provide documentation of that.
As mentioned above, you need to identify the classes of goods and services related to your trademark, so that you can claim the scope of IP protection. Documentation can also be used to attest the consistent use of your trademark. If you are extending your trademark to cover goods and services not mentioned in your registration, you will not be able to protect them under your trademark. Another trader can use a similar trademark, and get away with it.
Work with a trademark professional like Shelston IP and assess prevailing intellectual property laws, about what your trademark protection entails, to ensure that you are protecting your entire inventory of goods and services. You will also need to consult with a patent professional to expand the classes of goods and services under a trademark protection.
Even demonstrating trademark infringement in parts, can be a tricky area. Sometimes the offending trademark merely takes a small design element, a shape, or a colour tone you believe to be yours. In such cases, Intellectual Property protection firms like http://www.shelstonip.com/services/corporate-and-commercial-law/copyright/ will help you identify infringing elements and copyright infringement to sue over. The most important thing therefore is to maintain vigilance over the marketplace, and check new brands if they are attempting to benefit from your trademark.