20.1. Definition of a trade mark

Part 2 of the Act entitled “Interpretation” refers for the definition of the term “trade mark” to section 17 where it is defined as follows:

A trade mark is 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.

A note then refers to section 6 where the term “sign” is defined as follows:

sign includes 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.

1.1

The principal differences in the definition of “trade mark” from the definition in the repealed Act are the use of the word “sign” instead of “mark”, the omission of any reference to use by a registered user and the omission of the phrase “with or without an indication of the identity of that person”.

1.2

The last principle at 1.1 above is so well entrenched in the case law that the omission of an express provision has made no difference to practice in this regard. It is still the case that a trade mark may be capable of distinguishing the goods or services of a person even if consumers of the goods or services are not aware of the identity of the producer of the goods or the supplier of the services. The omission of reference to use of a trade mark by a registered user takes account of the provisions relating to authorised use of a trade mark which had no counterpart in the 1955 Act.