33.1. What is a collective trademark?

A collective trade mark is a sign used or intended to be used, in relation to goods or services dealt with or provided in the course of trade by members of an association to distinguish those goods or services from goods or services so dealt with or provided by persons who are not members of the association. Unlike certification trade marks, the use of collective trade marks is not required to be subject to rules.

1.1

Section 164 states:

An application for the registration of a collective trade mark must be made by the association to which the mark belongs.

1.2

A collective trade mark can only be owned by an association. The following are examples of entities that are not an association and therefore cannot own a collective trade mark:

• an individual or individuals
• proprietary company limited by shares

1.3

To apply for registration of a collective trade mark the association applying may be an incorporated or unincorporated body. Prior to 27 March 2007, collective trade marks could only be owned by an association that was not incorporated. Sections of the Act relating to collective trade marks always refer to members (plural) of the association, and according to its ordinary definition an association cannot exist with only one member. This is implicit in the meaning of collective.

1.4 Definition of an association

An association is defined in business and general dictionaries as:

An organisation of people with a common purpose and formal structure

Macquarie Dictionary (Macquarie Library, 5th ed., 2009)

1.5 Incorporated association

Associations are incorporated under state and territory associations incorporation legislation, which is not administered by ASIC, but by the various state and territory authorities. An incorporated association is also a legal entity separate from its individual members and can hold property, sue and be sued. Incorporating an association in a state or territory restricts the organisation to operating in its home jurisdiction. For example, an association incorporated under the Associations Incorporation Act 2009 of New South Wales may only carry on business in New South Wales.

The associations incorporation legislation in each state and territory provides a simple and more affordable means of creating a separate legal entity for small, community-based groups with limited resources. This legislation imposes less onerous conditions than the Corporations Act governing the activities of companies.