False Claim of a Registered Trademark
IP Australia is worth reading if you want to understand your rights in areas such as copyright and trademark. For example, its against the law to use the Registered Trademark (®) symbol after your website or business name (or your client’s for that matter) when you don’t even have an application for registration. The IP Australia website FAQ states this is a federal offence under section 151 of the Trade Marks Act 1995. Yes a criminal offence.
Use of letters ® and TM
Q. Who can use the ®?You may use the ® (Registered symbol) next to your trade mark once your trade mark is registered. If your trade mark is registered overseas but not in Australia, you can also use the symbol, but you need to show the country of registration close to it. Anyone can use the TM symbol (Trademark symbol) as this does not indicate that the trade mark is registered.
Q. Is it an offence to use the ®, if your trade mark is not registered? What can I do if someone is using it and they do not have a trade mark registration?
Yes, it is an offence-see section 151 of the Trade Marks Act 1995. The Trade Marks Office, however, does not police or investigate such matters.
If you have real concerns about someone using the ®, you might consider contacting the Australian Federal Police, as it is a criminal offence, to ask them to investigate the matter. However, the AFP may not have the capacity to follow up the matter and would need to assess it in the context of their other priorities at the time.
Q. Is there a penalty if the letters TM are used?
No, however there is a penalty if ® is used on an unregistered trade mark. If ® is used on a trade mark which is registered overseas but not in Australia, the country of registration must be shown in close proximity to the ®.
So I guess you can TM your heart out but its healthy business not to break the law by claiming ® status unless you’ve actually gone through the process. There seem to be enough people uncertain about the distinction between the two claims that it was worth posting the information here.
Even if the Australian Federal Police and IP Australia are not that interested in pursuit of people who break this law its not worth your business reputation on the off chance that you’ll wind up in court. If you don’t have registered status just use the TM symbol and play it safe.
January 15th, 2008 at 9:38 am
This is a great post (TM) by the way…
When I read this initially, I couldn’t think of anything really useful to add. But now, a few days later, well there’s a nice link I can throw in to the comments…actually, it doesn’t relate that closely to the specifics of your article mate – but it does have some good tips about Copyright chasing! I’ve bookmarked it in my ‘Legal’ folder* – so here’s me doing some sharing:
http://www.seomoz.org/blog/four-ways-to-enforce-your-copyright-what-to-do-when-your-online-content-is-being-stolen
*Hey, isn’t it a bit sad that I even need to have a folder about Legal-type matters on the Web?! Hmm…
January 15th, 2008 at 9:40 am
..(Gawd their blog post title was absurdly long!! Sorry about that…should’ve used a tiny-url for it!)
January 15th, 2008 at 5:09 pm
Yeh its surprising the number of people who are working with or generate content who have no idea of their geographical specific rights with regard to copyright… I remember complaining once to a guy in California, a big money web firm, who had ripped a contact form page (Linden’s art site one in fact) and rebadged it with the exact same colours and everything – only changes were his logo and his own copyright at the bottom. OK so I complained…
He said all he grabbed it for was the palette. I asked why he didn’t just grab the palette then and why put his own copyright on it? He then locked it away behind a password. Who knows what he did with it? And that was a rather successful web company who I had high regard for until that point. Obviously they get their web standards work done by ripping layouts and rebadging…
ahhh the nature of the work we do
and thanks for the link, it was an interesting read.