IP Report 2019

Trade marks

A trade mark is a sign that differentiates a particular product or business in the marketplace. Trade marks are informational signals from producers  to consumers. For instance, a trade mark can convey information about the origin of a product or its quality. By helping consumers to distinguish between different products or businesses, trade marks support purchase decisions.

To be registrable, a trade mark must be graphically representable, such is the case for brand names, logos, colours and musical jingles. Registrants can use the ® symbol in association with their trade marks. Trade marks can be renewed indefinitely, with fees payable every 10 years.

Trade mark applications: In 2018, trade mark applications grew by around four per cent to  a record high of 79 490 (Figure 6). As in 2017, growth was entirely due to an increase in applications by non-residents, which increased by around 11 per cent while resident applications fell slightly, by less than one per cent. The share of non-resident applications has increased from 32 per cent in 2009 to 42 per cent in 2018.

Figure 6 is a graph showing trade mark applications by residents and non-residents from 2009 to 2018

Trade mark applications can be filed either directly with IP Australia or through WIPO’s Madrid system.1 The latter route to filing in Australia is used almost exclusively by non-residents. In 2018, total direct applications increased by one per cent while Madrid applications continued their strong growth recorded in the preceding year, increasing by around 13 per cent. The Madrid share of total applications is now at its highest ever level at 22 per cent.

Figure 7 shows the top 5 Nice classes for 2018 and the top 5 country of origin for trade mark applications

Country of origin: Resident applicants accounted for about 58 per cent of all trade mark applications in 2018. Historically, the vast majority (around 90 per cent) of resident applications come from SMEs and individuals.

With 29 per cent of all non-resident applications in 2018, the US remains the second largest source of non-resident applications, recorded a 27 per cent increase in 2018, bringing its share to 17 per cent. Strong growth in applications from France, Germany and Italy was also observed in 2018.

States and territories: In 2018, applications grew most strongly in the territories; by 51 per cent in the Northern Territory (albeit from a low base), and by four per cent in the Australian Capital Territory (Figure 8). Victoria (VIC) was the only state to record an increase in trade mark applications, by 2 per cent, while the remaining states experienced decreases ranging from two to four per cent. Since their 2016 peak, applications in New South Wales (NSW) have fallen in consecutive years. Despite this, NSW remains the largest source of resident trade mark applications. NSW and VIC together—home to 58 per cent of Australia’s population 2 — account for 66 per cent of all resident applications.

Figure 8 shows trade mark applications by states and territories from 2017 to 2018

Registrations: A total of 59 984 trade marks were registered in 2018, an increase of around four per cent from its 2017 level (Figure 9). Growth occurred in registrations from both resident (three per cent) and non-resident (around five per cent) applications. The resident-to-non-resident split in registrations is the same as in applications. Although a few large businesses such as Samsung Electronics and ALDI Foods may have multiple registrations, SMEs collectively account for almost two-thirds of all trade mark registrations.3

Figure 9 is a graph of trade mark registrations by residents and non-residents from 2009 to 2018

Trade mark classes: The Nice Classification system is an international classification of goods and services which categorises trade marks into 45 classes.4 A single trade mark application can nominate multiple classes, making it possible to use one trade mark to brand several products falling under different classes. In 2018, a total of 148 156 classes were nominated in the 79 490 trade mark applications filed (Figure 10), an average of 1.9 classes per application.

Figure 10 is a graph of trade mark classes and applications filed from 2009 to 2018

As in previous years, the three classes with the most applications in 2018 were Technological and electrical apparatus, with 14 644 applications (class 9, up eight per cent from 2017), Advertising and business functions, with 14 126 applications (class 35, up seven per cent), and Education, training and entertainment, with 11 304 applications (class 41, up two per cent). Together, these three classes represent 27 per cent of the total number of classes nominated.

Australians filing overseas: In 2017 (latest data), Australian resident entities filed 18 356 trade mark applications overseas, the US being the top destination (with 3 754 applications), followed by New Zealand (2 745).

In 2017, Australians filed for a total of 41 044 classes in their trade mark applications overseas, an increase of six per cent, which continues the strong upward trend in Australian trade mark filings abroad since 2009 (Figure 11). This is indicative of an increasing export interest of Australian businesses in diversified markets.

Figure 11 is a graph of the level and growth in trade mark classes of Australian-origin filings overseas from 2008 to 2017

Alison Abernethy: Declutr— systems to simplify your life

photo of Alison Abernethy

Alison Abernethy is a professional organiser based in Canberra.

Through her business, Declutr, Abernethy’s role is to not just declutter her client’s lives, but also put into place systems and processes that will help them maintain that level of organisation.

‘What I espouse is that simple systems work,’ she said. ‘But often we need someone else to tell us how to simplify that or make it more systematic.’

To build the business, Abernethy wanted to make sure she was protected in as many ways as possible, explaining her concern was driven by seeing small businesses started by women losing out by not seeking protection.

‘They might start out as a blog and they don’t think they need to protect their IP in any way. But then someone else comes along and trade marks essentially their ideas. I wanted to make sure that, when I set my business up, this could not happen.’

After learning about IP Australia’s TM Headstart service, she contacted IP Australia for support in understanding the options available to her.

‘It was fantastic,’ Abernethy said. ‘The process was so easy. I had initially just put in an application to trade mark the business name, but a helpful examiner from IP Australia explained that it was too close to a real word that could be used in everyday occurrence. So we talked about including the tagline and logo, packaging this up for protection. The examiner could not guarantee protection but explained the best options and why. They were really personable and really good at their job.’

Thanks to this information, her application went through without a problem, with the logo and text becoming a registered trade mark in 2018 and, through her networks, she is encouraging other women to follow her path.

‘Creative women tend to be put off by bureaucracy, but it is important to recognise the importance of IP around ideas. But this process was easy—it was not like filling out a form for Centrelink or Medicare. I had support and understood the steps. If anything, TM Headstart just needs to be promoted more to encourage more women to seek IP protection.’

And with her IP protection in hand, Abernethy has celebrated what she hopes will be the first of many achievements for Declutr.


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End notes

  1. The Madrid system allows filing of trade mark applications in multiple jurisdictions.
  2. Australian Bureau of Statistics. 2017. Australian Demographic Statistics, Jun 2017, cat. no. 3101.0 , retrieved 28 February 2018.
  3. SMEs made 63 per cent of trade mark registrations in 2017, with private individuals accounting for 25 per cent and large firms 12 per cent. IPGOD 2018.
  4. Details about the Nice classification