We are thrilled that Legalwise will be publishing a series of videos called Trade Mark News with Hayley Tarr, during which I summarise some of the interesting patterns emerging from the Australian trade marks database in previous weeks.
Legalwise released the first of the videos in the series today.
A rough transcript of the news is below, for people who prefer to read.
Contact Hayley on 0477 914 319 or hayley@tarrlaw.com.au to engage her to:
a) register or protect your IP rights and trade mark rights,
b) research emerging trends in Australian business as gleaned from the Australian trade marks database, and
c) present on intellectual property, trade marks or entrepreneurship.
Watch the second episode of trade mark news here.
INFLATION IMPACTS FILINGS
1689 new trade mark applications were filed in the first two weeks of the year, from 1st to 15th of January 2023, heralding a lot of new business expansion plans already underway. But this does reflect a slow down from previous years, with 2,417 new applications filed in the first two weeks of 2022, 2757 new applications filed in the first two weeks of 2021, and 2268 filed in the first two weeks of 2020, and 2320 filed in the first two weeks of 2019. That is, there was a burst of new applications in the pandemic, as people sought to pivot to survive the impact of the pandemic, but the number of fresh applications in 2023 has dropped to below even pre-pandemic levels. Perhaps with inflation causing a bit of a pinch for businesses, people are less likely to spend on matters they see as ‘non-essential’, meaning trade mark applications are down. It will be interesting to see whether this translates into a higher incidence of trade mark related disputes in the near future.
BEWARE THE CO-OWNER
Some interesting applications are RAWKUS for a series of classes related to the music industry. What makes this interesting is that the mark is co-owned by five different applicants. As with copyright, a joint owner of a trade mark cannot exploit it without the consent of the other joint owners. So, it puts each co-owner at a huge risk to own the trade mark in this way. If there is a fall out, let’s say – because it is a music related mark that one of the ‘band members’ goes rogue, and decides to refuse to consent for the others to continue to use the mark, except on extortionistic terms, such as ongoing revenue even though they are no longer in the band, then the remaining owners will either need to agree to those terms or cease using the mark and lose all of the valuable goodwill in that mark. For some people, it may be necessary to file in this way, if the mark has been used by an unincorporated partnership between 5 people prior to the filing date for example. But, it is recommended that, once an application has been filed and it thus becomes an assignable asset, the trade mark is transferred to a corporation, of which each of the previous owners is a director and shareholder, as a risk minimisation strategy.
CRYPTO IS NOT DEAD
To speak to Jennifer Hewitt’s Australian Financial Review article of 14 December 2022, titled “Is crypto dead or is it just resting?”, it may not even be resting. 14 new applications covered cryptocurrency or crypto and, on top of these 14, 28 additional new trade mark applications covered NFTs and 11 additional new trade mark applications covered blockchain. That’s a total of 47 marks in the crypto and related space in the last 2 weeks. In comparison, 24 trade marks were filed covering these exact same descriptors in the first 2 weeks of 2022 for example and a mere 10 were filed covering these exact same descriptors in the first 2 weeks of 2021 (notably none covered NFTs at that time).
AND THE FITNESS INDUSTRY IS NOT RESTING
There have been 44 new trade mark applications covering gym or fitness services in class 41 in the past two weeks alone. This has contributed towards class 41 being one of the most commonly covered classes thus far this year, with 248 marks filed in that class, trailing on software apps in class 9 and retail services in class 35 (261 marks have been filed in each of those classes thus far this year). At the other end of the scale, there have only been 2 marks filed thus far in class 23 (which covers yarns and threads for the textile industry), and 5 marks filed thus far in each of classes 15 and 27 (covering musical instruments and carpet and wall coverings), reflecting the lack of manufacturing industry for those products in Australia, and a possible sector to deliver some of the federal government millions earmarked to boost local manufacturing.
