Registrability of various kinds of signs

Date Published

Section 17 of the Act defines a trade mark as:

a sign used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person.

Section 6 of the Act defines a sign as including:

the following or any combination of the following, namely, any letter, word, name, signature, numeral, device, brand, heading, label, ticket, aspect of packaging, shape, colour, sound or scent.

A trade mark applicant may nominate any sign which can be represented graphically as their trade mark (see s40). Whether this sign will function as a trade mark cannot be assessed at the initial stage of examination.  Each application must be taken on face value, and be considered under section 41 in the usual fashion. The question of whether a sign in fact does function as a trade mark will only become an issue on consideration of evidence of use, should this be supplied during the course of examination

Trade marks consisting of an aspect of packaging, shape, colour, sound scent or other non traditional signs are considered in Part 21 of this Manual.

Paragraphs 8 to 26 below consider the treatment of other signs falling within the definition.