10.5. Product: Product name

Date Published

Each application must include a product name. The formalities officer will classify the product based primarily on the product name as part of the application detail.

A product name is a short description of the product(s) in the application. The applicant is responsible for submitting the product name along with enough information for a formalities officer to identify the product(s) in relation to each design. If the applicant does not supply a product name, they must be asked to provide one.


Requirements for product names

The product name:

  • must match the product shown in the representations
  • must be clear enough to allow the formalities officer to determine a classification for the product
  • cannot be too general – for example, ‘textile article’ could be any product that has been made of textile material. This should be amended to name the product(s) that are clearly shown and understood in the representations. ‘Article of clothing’ could be any form of clothing. This could be amended so that it is more specific – for example, ‘t-shirt’
  • must not contain material that is considered scandalous
  • must identify a whole product, not just part of a product – e.g. ‘bowl of a spoon’ is not a name for a whole product; the whole product is a ‘spoon’.

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Things that cannot be product names

The product name cannot be:

  • a trade mark (e.g. Band-Aid). A trade mark is not a description of a product that is manufactured or handmade. Rather, it is a sign that indicates the trade origin of goods or services. Product names that include a trade mark or branding references should also be avoided. The generic name that indicates what the product is, and its purpose, should simply be provided 
  • a concept (e.g. ‘product helps improve golf swing’)
  • the name of part of an assembled product (e.g. ‘button attached to work shirt’) if it is the assembled product that is being registered – it must be for the whole product (e.g. ‘work shirt’)
  • A collective description for more than one physically unconnected objects. For example, "Pair of swimming flippers". A pair as such is not considered a product. However, the individual objects that make up the pair might be given their own individual product names as part of a common design. Alternatively, mirror images could be shown in the representations and a product name referring to a single thing provided.


Inconsistency between product name and representations

If there is inconsistency between the product name and the representations, the formalities officer will assume the product name is wrong. They will ask the applicant to supply a product name that is consistent with the representations. An examiner, where faced with this inconsistency, should also identify the product and examine the registration based on what the representations show, and importantly what a familiar person / informed user would understand the product to be.


Clarity

The name of a product cannot be vague or too general (see Requirements for product names above). The application detail needs to clearly identify the listed products. Also, the detail needs to indicate the purpose or function (use) of the product so that it can be accurately classified.

Formalities officers will not take into account things like descriptions or embellishment in the name unless that information leads to doubt about:

  • whether a thing is a product and, if so, what the product is, including the nature of it
  • whether the representations match the product name
  • what the most appropriate classification is.​​​​​​​​​​​​​​

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Common design for more than one product

An application for a common design submitted under s 22​​​​​​​(1)(b) requires more than one product be listed. For example, if there is a common design for a toy car and a car, the applicant will give the product name as ‘toy car; car’.

Whilst the products do not need to be exceptionally different, the names supplied (in addition to being consistent with the representations), need to demonstrate to the formalities officer that more than one product has been included, and not product names that equate to the same product. Also, and unlike an application submitted under s 22(1)(d), there is no strict requirement that the different product names be classified in the same Locarno class.

In determining whether more than one product applies, an officer will consider:

  • What the product names identify as general and specific purposes. Whilst the products may share a similar purpose, for example to seat people, the names “two-seater couch” and “three-seater lounge” identify different specific purposes (to seat a different number of people). On this basis more than one product has been identified and would be understood as such.
  • However, where the products names identify the same general purpose (a chair) and the names claim more than one product based purely on a visual feature (for example colour), it is unlikely that more than one product has been identified. A blue chair and a green chair would not be considered more than one product.
  • An officer may need to conduct research to establish if there are any differences to support a claim that more than one product is applicable.
  • The officer may also try to establish whether the products are generally understood in the marketplace to be different things.
  • Where there is sufficient doubt the officer will query this application detail, requiring the applicant to support the claim that the product names, which at face value suggest the same thing, are in fact different - resulting in more than one product being claimed.

The representations should also be labelled to make it clear which product name applies to each representation.


Logos, type-fonts and software given as product name

Logos, type-fonts and software such as graphical user interfaces are not considered to be ‘products’. They do not meet the definition of ‘product’ under Australian law, so on their own they cannot be registered.​​​​​​​

Example

In Microsoft Corporation [2008] ADO 2 the application for a design was in respect of a font. Registration was refused on the basis that ‘the present design does not disclose a product bearing visual features. It only discloses visual features’. A type font is the shape of characters – it is not a ‘thing’ in its own right. Therefore, a font cannot be a product – at most, it is a design applied to a product.

Amended Reasons

Amended Reason Date Amended

Minor clarifications regarding pairs and product names.

Minor correction and hyperlink inclusion. Refine text re: Logos, type-fonts and software given as product name.