Trademarks

[No_One]

Just wondering if anyone here knows anything about trademarks?

A dude has trademarked a word I wanna put on a shirt, could he reem me for doing it?

When does a word no longer become a word and become an image/design i.e. if I argue my handwriting/style is art not words and put this on a shirt in my hand writing or graffiti style could you get away with it?

What if somewhere else on the shirt I put a tiny image and claim that is my trademark and the "word" is just an image I came up with that when looked at closely looks like/sort of resembles the word this dude has trademarked.

Does anyone have any experience with this sort of thing?

What's stopping some prick from going through the whole dictionary and trademarking it all or every possible combination of letters/words/sentences (apart from finances)?.

[Rabaelthazar]

I'm not qualified to offer legal advice, so the information in this post is for discussion purposes only and should not be relied upon for any reason or in any situation.

I'm pretty sure that trademarks are context sensitive. For instance, Cadbury has trademarked the colour purple that they use on their packaging. Now, that trademark protects them against another chocolate company using the same colour on their packaging, however, it wouldn't be relevant if a dry-cleaning company, for instance, used that same coulour purple on the front of their shop.

In what context has this person trademarked the word? If it's been trademarked so that they can use it as a name for a product or something, and the word is a common word, or at least in reasonably common use, then I would imagine that you'd have no trouble putting it on a T-Shirt. Eg: someone trademarks the word "elephant" to use as a name for their new computer program, no worries, any other developers of computer programs won't be able to use the word, but you can still draw up a t-shirt with the word printed on it, I guess as long as your imagery is not related to the trademarker's product.

The other end of it would be if a guy trademarked a word like "Splendifornicatiblastissimus" then it's pretty obviously not a common word and you'd be doing the wrong thing by using it without authorization.

Does that make sense? Once again, don't rely on this as legal advice. If you're unsure, then just don't do it. It would hardly be worth paying a lawyer for advice about whether you can print a t-shirt up.

Then again, if you're only printing one and you're the only person who's going to wear it, really what can happen? You're walking down the street and all of a sudden a team of lawyers climb out of a dumpster and say "Sonny, that T-shirt you're wearing breaches our client's trademark". Your response would be "Damn. I shouldn't have bought it from that traveling salesman I met on the beach in Cambodia."

Can you share the context of your question?

Edited September 4, 2010 by Rabaelthazar

[No_One]

Thanks for the reply dude.

The context is me trying to work out the business side of being an artist.

My understandig is I'm going to need an ABN but I'm not sure on business names, trading names, brands, etc.

The word I want to call my "operation" (which will be producing sellable items and selling them through a website) is what I want to print on a shirt as a means to promote/advertise/get people talking about what I do so I can nudge them to my shop.

The word is trademarked and it says it's "class 3" which is apparently perfume but there's a partial assignment with a clothes brand - I'm still reading up on partial assignments.

I really want to know what freedoms I have with selling creations.

Say I wrote a song and called it Big-W or K-Mart and made a shirt with Big-W or K-Mart on it in a way which looked nothing like the logo of the Big-W or K-Mart shops logo, what is happening here, would I be breaking any laws?

[Rabaelthazar]

My understandig is I'm going to need an ABN but I'm not sure on business names, trading names, brands, etc.

 

ABN is the only thing you need to start trading. A business name and all that stuff is optional. You can trade under your own name to sell your goods or perform your services but obviously, if you start trading under a name other than your own, you will need to register it with Consumer Affairs. I believe brand names are registered in the same way, but not 100% sure of that.

The word I want to call my "operation" (which will be producing sellable items and selling them through a website) is what I want to print on a shirt as a means to promote/advertise/get people talking about what I do so I can nudge them to my shop.

The word is trademarked and it says it's "class 3" which is apparently perfume but there's a partial assignment with a clothes brand - I'm still reading up on partial assignments.

 

Ok, so if you're going to name your operation by a name other than your own given name, you must register it with Consumer Affairs. They will ultimately make the decision as to whether your line of business is distinct enough from the other person with that name registered (are they registered in Victoria, btw?) and may allow a variation of it or refuse it all together.

Say I wrote a song and called it Big-W or K-Mart and made a shirt with Big-W or K-Mart on it in a way which looked nothing like the logo of the Big-W or K-Mart shops logo, what is happening here, would I be breaking any laws?

 

I'm sure this could be argued both ways in court, if it came to that. I would imagine though that if your T-shirt was a print of a piece of art, and that art happened to depict Big-W or K-Mart it wouldn't be an issue whereas if you had big letters saying "K-MART" just in a slightly different font, then it would be potentially a different story. I guess the other question is, how big are you planning for your business to be? If you're going to sell a few bits of merchandise a month, how likely do you think it would be for the corporate giant to commence legal action against you? Or, do you intend for 50% of the Australian population to be wearing your clothes by the year 2012?... a different approach would be taken for each scenario.

If you're unsure, seek legal advice. If the legal advice is going to cost more than you expect to make in profit, then I personally wouldn't bother and just run the risk, knowing that chances of ramifications would be incredibly small. If you're planning to name your business something as well known as, say, Chanel no.5 then I'd just ditch the name altogether and choose something original. Saves you any potential headache down the line.

Good luck with it. Let us know how you get on.

[No_One]

Thanks man,

I've done some more reading and it all correlates with that you've said -

Most of it's all guff, the only thing I think deserves caution is this thing they keep going on about called "passing off" which is apparently what trademark/trade name holders can take you to court for, I won't be passing myself/my services/my goods off as anyone/anyone elses so I should be right I think/hope.

I registered an ABN today as a sole trader; next job's to register a/some trading names.

Do you know if there's any restrictions or laws pertaining to advertising/promotional material?

For example, does it have to have you're ABN on it?

[Rabaelthazar]

Do you know if there's any restrictions or laws pertaining to advertising/promotional material?

For example, does it have to have you're ABN on it?

 

He he, sorry, you've taken me to the extent of my knowledge in this area. Don't know about this one.

[mr me]

If you are serious about starting/running a business then seek legal advice. Money spent now will save headaches later on. My old man registered a business name that was similar to Intel. The business had nothing to do with computing but he received a cease and desist order from one of Australia's largest legal firms representing Intel, saying that he had infringed on their trademark. He had not even sold a product or service yet and they were sending out this crap.

Now it was probably just some Graduate student trolling through business records and if he had fought he probably would have won. Problem is this - who has deeper pockets?