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An Aussie Internet Trademark Guide

Please ensure you read and understand the disclaimer before reading this article. Always consult a qualified lawyer for your legal advice.

Do you have a trademark in Australia? What do you know about trademark law and internet copyrights? If you run your own business, you probably already know that your trademark is very important but do you know how to protect your business online? The Internet has changed the way businesses operate and the way consumers can purchase goods and services. It’s now easier than ever before to purchase almost anything you can think of with just the pressing of a few keys and a few clicks of the mouse.

The innovation of technology means businesses have a greater audience to market their product to. But this also means that business owners must make changes to keep up with the growing trends and also to protect themselves from new dangers. Many types of dangers exist on the Internet and one common problem is when two companies from different countries have the same registered trademark or patent. Who has permission to use this on the Internet? What if you are both trying to market to multiple countries?

Trademark registration in Australia is not compulsory but it is recommended for your business. This makes it much easier when trying to prove ownership of a trademark as well as to prove how long the trademark has belonged to you. If you own a trademark, you now have many other places and ways in which to monitor it and be sure it is not being infringed upon.

With the advent of the internet, business has a great way to increase the number of people that they can market to however with this larger exposure comes the higher risk that someone could try to infringe on your copyrights. One of the biggest problems with this, aside from the obvious, is that it can be difficult to know how to address the issue if the person infringing on your copyright is from another country where copyright laws may be different from that of Australia. Who really has the legal right to use the trademark if you both have legally applied for it in your own respective countries?

The IP Australia official website defines what a trademark is under Australian law and what one must do to apply for a trademark. A trade mark is considered a word, phrase, letter, smell, number, logo, picture, aspect of packaging or even any combination of these things which is used to distinguish the goods and services of one trader over that of another.

Trademarks are an important part of marketing for most businesses and this includes those who sell and advertise over the Internet.

If a company has the same trademark as yours registered in another country, but you both are selling online, how can you determine if they have infringed upon your copyright or trademark? According to Australian trademark laws, there are certain rules regarding what makes a website liable for trademark infringement.

To be liable according to the Federal Court:

• If the website is specifically targeted or directed at Australia and the Australian market then they may be liable
• If the website doesn’t specifically target Australia but it accepts to sell the overseas product to an Australian consumer then this can be considered “useâ€� under the Australian trademark law

For the website to be liable, there has to be proof according to the Trade Mark Act of 1995 that the mark is “in use� in each jurisdiction where it is downloaded. You may need to prove that the person/company using the same trademark is deliberately marketing it in Australia and attempting to sell their product in Australia. If you have questions regarding the interpretation of what qualifies as “use� you are advised to speak with someone qualified in trademark and patent law.

There have been some famous cases in Australian law regarding copyright and trademark infringement on the Internet and what constitutes fair use on the Internet. As a result, there are certain laws and guidelines in place to help with this growing problem. However, just as the Internet is always changing, so must the laws sometimes adjust for these new problems.

If you feel that you may have an Internet trademark issue, your first step should be to contact a qualified trademark attorney right away. Time could be an important factor in your case so you do not want to waste any. Whether you are the victim and you feel your trademark is being infringed upon or if you have been accused of infringing upon someone else’s trademark, you need to seek the aid of an experienced lawyer who can inform you of your rights and help you resolve your case.