This year is 25 years since I first took my first law grad job at Allens. So, it has been a long time, and it means I have been witness to a lot of changes.
Some are good. How great is the ‘upload image’ function at IP Australia! It beats trying to use image terms (systematically inputting dozens of words to describe each of the features of a logo or composite mark to try to retrieve all relevant trade marks).
And some are bad. I miss being able to look up the surname checker to see if more or less than 750 people had that surname in Australia! (Lucky for me, Tarr is rare, and hence TARR LAW sailed straight through.)
Some are neither good nor bad, but notable all the same. Think ATMOSS. ATMOSS used to be the name for IP Australia’s trade mark search platform. (ATMOSS is an acronym for ‘Australian Trade Marks Online Search System’.) When attorneys wanted to search the register, we Googled ATMOSS, to get to the site we wanted. Many of us still do this today. But, ATMOSS is no longer used by IP Australia. Seeing an opening, Adam Clune of IP Backlinks Pty Ltd, a company registered in Morley, WA, has registered the domain name atmoss.com.au and is using it for a website providing an Australian trade mark search function, by reference to the trade mark ATMOSS.
Ironically, for a trade mark registration institution, IP Australia never obtained trade mark registration for ATMOSS. Therefore, they cannot allege trade mark infringement. (And even if they could, AU Backlinks Pty Ltd could have just countered with a non-use application. That would have been interesting! What a conflict for IP Australia to have to hold a Hearing over a matter where it was itself one of the parties?!)
Could IP Australia rely on residual reputation to allege passing off or misleading and deceptive conduct? Or is the use of ATMOSS fair game?
AU Backlinks Pty Ltd hasn’t applied for trade mark registration of ATMOSS. It would be interesting to see the exam report that IP Australia issued if they did!
