What is a Trade Mark? The Barbie movie has dominated the recent 2023 Australian headlines. However, Barbie is making headlines in the UK for a different reason; trade mark infringement. The toy's maker Mattel has lodged Court proceedings not for infringement of their brand name, but for the "Barbie Pink" tone of colour used in its advertising. Can you register a trade mark over a colour in Australia? What is a trade mark? In this article we explore these questions. What is a Trade Mark? Trade marks provide that extra measure of protection over your brand, deterring other people from using it and increasing your rights against those who infringe upon it. A trade mark is a registered symbol or words that are used to distinguish your goods and services from those of others. A trade mark is essential to protect your brand and distinguishes the goods and services that you provide in the eyes of consumers. A successful business is usually intrinsically associated with a valuable trade mark. What can I Trade Mark? You can register a trade mark over the following individual or combination of items: Logo Word Letter Number Phrase Picture Shape Colour Sound Smell Aspect of Packaging The more original or unique a trade mark is, the easier it will be to register. Something that is commonly used or likely for a competitor to use will be more difficult to register, such as a location or a common phrase. It must therefore be sufficiently different from other registered trade marks. It goes without saying that once someone has registered a trade mark, you cannot register a trade mark over that same subject matter. Even if somebody has not registered a trade mark over their brand or logo, but has used that brand and gained a reputation in the market place, you may also be prevented from registering a trade mark over that brand or logo. There are also restrictions for trade marks over flags, emblems, official signs and armorial emblems. For example, there are restrictions on trade marks containing a representation of/or association with the Royal Family. The Selection of Goods or Services When applying for a trade mark, you must select the category or categories of goods and/or services which you want your mark to cover, and provide a specification of each category. There are 45 categories to choose from. A poor description in the specification will not give proper protection. You cannot amend a trade mark description once it is registered, so it is good practice to invest in a professional to get this right in the beginning. You also will not be refunded the application fee if IP Australia refuses to register your trade mark. What does Registration Provide? Registration of a trade mark means it becomes your personal and intellectual property. It gives the owner a legally enforceable right to use the trade mark, licence its use to others or sell it (in the country in which the trade mark is [...]

In a highly anticipated verdict, British singer-songwriter Ed Sheeran emerged victorious in a copyright trial, defending claims that his hit song "Thinking Out Loud" infringed upon the musical composition of Marvin Gaye's classic song "Let's Get It On." The verdict, delivered on May 4, 2023, by a federal jury in a United States District Court in New York, marked a significant moment in the ongoing debate surrounding music copyright infringement. The decision has far-reaching implications for the music industry worldwide and raises questions about the boundaries of creative inspiration and originality in song writing. The legal battle began in 2018 when Structured Asset Sales (SAS), which holds a part of the copyright for "Let's Get It On," filed a lawsuit claiming that Sheeran's song, copied the "melody, harmony, and rhythmic components" of Marvin Gaye's iconic track. The lawsuit sought damages and a portion of the royalties earned from Sheeran's song, which had achieved global success and widespread acclaim. The verdict sets an important precedent for future copyright cases in the music industry as well as reinforcing the notion that stylistic similarities or a similar feel between songs, does not provide sufficient grounds for a successful copyright infringement claim. Rather, the focus in these cases still remains on identifying the substantial similarity of the important elements of a song, such as the melody, lyrics and musical composition. As the music industry continues to evolve in this digital age, artists will be expected to continue to draw from the rich musical history that has come before them, meaning cases like this will undoubtedly arise again. This case highlights the importance of copyright laws, not only in the sense of artistic inspiration and music but also in the ever-changing modern world, which is why it is paramount to have an understanding of the way the law functions. The case serves as a reminder of the importance of fostering a robust dialogue about the intricacies of copyright law, artistic inspiration, and the ever-changing landscape of creative expression in the modern world. What is Copyrighting? Copyrighting is the legal term used for the mechanism that grants exclusive rights to the creators over their original works, which prevents others from being able to use, distribute or reproduce their creations without lawful permission. Copyright protection covers many forms, including many artistic forms such as music, film, art and literature. By obtaining copyright on original work, this allows for creators to gain control over the way their content is used and gives them the ability to seek legal relief if their rights are infringed upon. Copyright in Music and Song Lyrics: In the realm of music, copyright protects both the musical composition and the lyrics. The composer or songwriter holds the copyright to the musical composition, while the lyricist retains rights over the lyrics. This dual protection ensures that creators have control over the use and distribution of their content. APRA Music Copyright: In Australia, the Australasian Performing Right Association (APRA) plays a significant role in administering [...]