Article by Richard Mackenzie
On your Marks, The need for Trademarks
Dick Mackenzie is a member of the International Wine Lawyers Association and has a particular interest in the wine industry, with his own vineyard.
You as proprietors of wineries and vineyards are actively involved in protecting your core business, that is the production of quality grapes for processing into quality wines. You expend large sums in the establishment, operation and expansion of your labels in Australia and overseas.
It comes as somewhat of a surprise that some of you may not have protected one of your most important assets, that is your trade marks.
Trade marks, generally speaking, are names, words, logos, shapes, colour, sound and scent that businesses use to identify themselves and the goods and services they provide. Due to the vital commercial role that trade marks play no business enterprise can function without trade marks. Equally no business enterprise functions successfully without some understanding of the law relating to trade marks.
Minimal protection is provided to you by the registration of a business name under the state legislation or the registration of a company name under the Corporations Law as it does not provide any proprietary right to the trade mark. However that is not to say that your business name or company name may not be functioning as a trade mark, but any protection would have to be based on the common law action of passing off. This usually is a cumbersome and expensive way of protecting your trade marks.
You spend much time, effort and money in market research, development and marketing of your trade marks so therefore careful consideration should be made with respect to registration of your trade mark in Australia and overseas. Successful businesses use trade marks and trade mark law to maximum advantage. Registration and use of trade marks confers on you a valuable marketing and advertising tool.
Recently Eales and Mackenzie has dealt with an interstate winery purporting to use a similar mark to a registered trade mark of one of our clients. Eales and Mackenzie have vast experience in the registration and protection of trade marks.
The trade mark registration system has as its primary purpose the granting of monopoly rights to the trade mark. Such rights are assets in themselves and can be sold or licensed. How to establish these rights and use them fully and how to avoid impeding on the rights of others is know how that every business must have to hand.
The obtaining of the trade mark registration may be equated to taking out some form of insurance. The owner of those trade marks has a relatively inexpensive and expedient way of taking action against infringers. The cost of obtaining registration and maintaining registration is relatively inexpensive compared to the cost of litigation and the cost and effort put in to developing your trade mark.
Therefore protection of your trade marks is equally as important as your next vintage.