Creative ways of protecting beverage industry innovations Presentation by Gint Silins, PhD
Patents (for protecting innovations) - Innovative beverages - Innovative manufacturing techniques and equipment - Innovative packaging Standard patent 20 year term (must be novel and inventive) Innovation patent 8 year term (must be novel and innovative)
Design Registrations (for protecting industrial designs) - Packaging, e.g. containers, dispensers - Shapes of products, e.g. tablets - Manufacturing equipment 10 year term (must be new and distinctive)
Unregistered trade marks May be protected under Copyright Act, Competition and Consumer Act, and Tort of passing off May have local rights only May be difficult and costly to enforce Notation: TM COLOUREZE
Get-ups found in Court to be too similar.
Registered trade marks Further protected by Trade Marks Act Protects similar marks for similar goods or services Exclusive Australia-wide rights Protectable overseas Registrable for 10 year periods, indefinitely Notation usually TM, or if registered
Trade Mark (Brand) A sign used as a badge of origin (and quality). A trade mark is used to distinguish the goods or services of one trader from those of another and may be a word, phrase, letter, number, sound, smell, shape, logo, picture, aspect of packaging or a combination of these. Owner of a TM (Aust.) Generally speaking, the first to file or the first to use the TM in Australia whichever is earlier.
Registrability Registrability under TM Act 1995 depends on: - Whether other traders would want or need to use the TM in the ordinary course trade. - Whether TM is descriptive of the goods or services, or a common expression. - Whether TM has a connotation. - Whether TM is likely to mislead. - Whether a prohibited or prescribed mark.
Non-traditional Trade Marks for Protecting Beverage Industry Innovations for perpetual protection?
Shape Marks & Aspect of Packaging Marks Registrability depends on: Whether it is capable of distinguishing the goods of one trader from similar goods of another Common to the trade? Functionality of shape/aspect of packaging? Aesthetics?
Trade Mark : 767355 Status: Registered/Protected Kind: Shape Type of Mark: Device Owner/s: The Coca-Cola Company Goods & Services Class: 32 Beverages Endorsements: The trade mark consists of the shape of a bottle as shown in the representation attached to the application.** Provisions of subsection 41(5) applied.*
Trade Mark : 1605141 Status: Filed Kind: Shape Type of Mark: Composite Owner/s: Sappe Public Company Limited Goods & Services Class: 32 Non-alcoholic beverages, mineral water, fruit juices, soda water Endorsements: The Trade Mark consists of the shape of a 3-dimensional shape of a bottle with a label displaying the words/numerals MOGU MOGO, Lychee Juice 25% with Nata de COCO, Gotta chew, 320ml e net wt., Best before: see on bottle and various device elements as shown in the representation(s) attached to the application form.*
Design Registration No longer in force
Trade Mark : 1077199 Status: Registered/Protected Kind: Shape Type of Mark: Composite Endorsement Owner/s: Paramount International Export, Ltd Goods & Services Class: 32 Drinking water; natural artesian water Endorsements: The trade mark consists of an aspect of packaging consisting of the three-dimensional shape of the bottle with lid, in combination with a back label depicting the fronds of a palm tree, wherein the label faces the interior of the bottle, and a front label with the word "FIJI" and depicting a hibiscus flower and leaves, as shown in the representations attached to the application form.*
Trade Mark : 1506210 Status: Under Examination Kind: Shape Type of Mark: Device Owner/s: Energy Brands Inc. Goods & Services Class: 32 Non-alcoholic beverages, including waters Endorsements: The applicant has advised that the trademark consists of the shape of a bottle that has a label applied thereto wherein approximately the top 45% of the label is a horizontal band of contrasting colour to the rest of the label.*
Trade Mark : 1520729 Status: Accepted Kind: Shape Type of Mark: Device Owner/s: Illuminated Industries Pty Ltd Goods & Services Class: 32 Non-alcoholic beverages Endorsements: The trade mark consists of an aspect of packaging, namely the location of a light source in the base of a bottle, as shown in the representations contained in the schedule, said light source when actuated being capable of illuminating the contents of the bottle. The configuration of the bottle depicted in the image by a broken line is for illustration purposes only and does not form a feature of the mark.*
Image: SH: CONTAINER HAVING A POWDER STORAGE AND RELEASE SYSTEM IN IN THE CAP PORTION Status: Under Examination Kind: Shape Type of Mark: Device Owner/s:Nenad Rogulj Goods & Services Class: 32 Vitamin drinks Endorsements: The Trade Mark consists of the shape of a container having a powder storage and release system in the cap portion as shown in the representation(s) attached to the application form.*
Trade Mark : 1532695 Status: Under Examination Kind: Shape Type of Mark: Device Owner/s: Voss of Norway ASA Goods & Services Class: 32 Carbonated and non-carbonated beverages Endorsements: The Trade Mark consists of a three dimensional shape of the bottle shown in the representation attached to the application form.*
Trade Mark: 1538525 Status: Under Examination Kind: Shape Type of Mark: Composite Owner/s: 9 MM American Beverage Company LLC Goods & Services Class: 32 mineral and aerated waters and other non-alcoholic drinks Endorsements: Colour Claimed: GOLD, BRONZE, BLACK and RED.; Parts Colour Claimed: Container: GOLD; caps: BRONZE; text: BLACK and RED.*
Trade Mark : 992949 Status: Registered/Protected - Renewal Due Kind: Shape Type of Mark: Device Owner/s: Controladora de Marcas Internacionales, S.A. Goods & Services Class: 33 Alcoholic beverages, except beers Endorsements: The trade mark consists of the shape of a bottle incorporating a three dimensional model of a palm tree attached to the inside base as shown in the representation on the application form.*
Trade Mark : 1073950 Image: SH: FIGHTING BULL HANGS FROM NECK BOTTLE,6 VIEWS Status: Registered/Protected Kind: Shape Type of Mark: Device Owner/s:Miguel Torres S.A. Goods & Services Class: 33 Alcoholic beverages (except beers) Endorsements: The trade mark consists of the threedimensional figure of a fighting bull tethered by a tape to the neck of a bottle as shown on the representation attached to the application form.*
Trade Mark : 1577707 Image: SH: SYDNEY OPERA-HOUSE Status: Accepted Kind: Shape Owner/s: Sydney Opera House Trust Goods & Services Class: 30 Coffee, tea and tea based products Endorsements: The Trade Mark consists of the 3- dimensional shape as shown in the representation(s) attached to the application.*
Trade Mark : 1464815 Status: Registered/Protected Kind: Shape Type of Mark: Device Owner/s: LEGO Juris A/S Goods & Services Class: 30 Coffee, tea, cocoa Endorsements: The trade mark consists of the three dimensional shape of a figurine as depicted in the representations attached to the application form.*
Trade Mark : 754723 Status: Registered/Protected Kind: Shape Type of Mark: Device Owner/s: Unilever Plc Goods & Services Class: 30 Tea products, ice tea, tea flavoured iced beverages, non-medicinal herbal teas and infusions Endorsements: The trade mark consists of the shape of a tea bag as depicted in the representations attached to the application form.* Provisions of subsection 41(5) applied.
Design Registration AU 123055 S Status: Currently Not In Force Current Owner: Unilever PLC
Scent/Smell Marks Registrability depends on: Whether other traders would want or need to use it in the ordinary course of their business, without improper motive. Natural scent of a product? Masking scent? Scent common to a trade?
Trade Mark : 821444 Status: Lapsed Kind: Scent Type of Mark: Device Owner/s: Debra Lee Brammall Goods & Services Class: 3 Self tan lotions, sun-tanning preparations, hair lotions, hair shampoos, hair conditioners, essential oils, lotions for cosmetic purposes, make-up preparations Endorsements: The trade mark comprises the scent of COFFEE fragrance for self tan lotions and hair lotions, sun-preparations.*
Trade Mark : 762286 Status: Lapsed Kind: Scent Type of Mark: Device Owner/s: Unipep Australia Pty Ltd Goods & Services Class: 3 Laundry use:- powders/washing powders used for washing clothes by machine, by hand and by soaking Endorsements: The trade mark comprises the scent of eucalyptus, including the eucalyptus scent derived from eucalyptus trees and/or from eucalyptus essential oil.*
Colour Marks Registrability depends on: Whether other traders would want or need to use it in the ordinary course of their business, without improper motive. Natural colour of a product? Colour/packaging colour common to a trade?
Trade Mark : 1496541 Status: Under Examination Kind: Colour Type of Mark: Device Owner/s: Frucor Beverages Limited Goods & Services Class: 32 Energy drinks Endorsements: The mark consists of the colour GREEN (Pantone 376c), as shown in the representation attached to the application, applied as the predominant colour to the goods, their packaging or labels.*
Trade Mark : 1111473 Status: Registered/Protected Kind: Colour Type of Mark: Device Owner/s: SANPELLEGRINO S.P.A. Goods & Services Class: 32 still water, effervescent water Endorsements: Trade Mark Description: Colour Claimed: SKY BLUE and WHITE.; Mark Description: The mark consists of a sign depicting a recurrent pattern in BLUE on a WHITE background.*
Trade Mark : 871194 Status: Registered/Protected Kind: Colour Type of Mark: Device Owner/s: Red Bull GmbH Goods & Services Class: 32 mineral and aerated waters Endorsements: The trade mark consists of the arrangement of the colours BLUE and SILVER, as illustrated in the representation accompanying the application form, applied to drink containers.*
Trade Mark : 1109934 Status: Registered Kind: Colour Type of Mark: Device Owner/s: SABMiller International B.V. Goods & Services Class: 32 Non-alcoholic beverages Endorsements: The trade mark consists of two bands of colour, the first being the colour Orange (PMS 151) and the second band being the colour silver, and a cross device being the colour Pantone Reflex Blue on a white background and a minus symbol device being the colour Pantone Reflex Blue on a white background, applied to a beverage container in the arrangement depicted in the representation of the trade mark attached to the application form. The first band of colour contains the cross device and the second band of colour contains the minus symbol device.
Trade Mark : 1368527 Status: Registered/Protected Kind: Colour Type of Mark: Device Owner/s: Red Bull GmbH Goods & Services Class: 32 Energy drinks Endorsements: The trademark consists of the colours BLUE and SILVER in substantial blocks applied to the external surface of drink container. An example of the colours, the subject of the application is attached.* Provisions of subsection 41(5) applied.*
Sound Marks Registrability depends on: Whether other traders would want or need to use it in the ordinary course of their business, without improper motive. Natural sound of a product? Sound common to the trade?
Trade Mark : 758676 Lapsed/Not Protected Kind: Sound Type of Mark: Device Owner/s: McCain Foods (Aust) Pty Ltd Goods Class: 29 Frozen vegetables and fruits Endorsements: The mark comprises a high pitched ping sound of short duration.*
Trade Mark : 941361 ENDORSEMENT-ONLY, "HAPPY LITTLE VEGEMITES" TUNE Status: Registered/Protected Kind: Sound Type of Mark: Device Owner/s: Mondelez Australia (Foods) Ltd Goods Class: 30 Coffee, tea, cocoa Endorsements: The trade mark consists of the tune represented in the musical score attached to the application form which is recorded on track 2 of the compact disc accompanying the application form.*
Trade Mark : 1062639 Status: Registered/Protected Kind: Sound Type of Mark: Composite Owner/s: Boost Juice Holdings Pty Ltd Goods and Services Class: 35 Services in this class in connection with selling food and beverages Class: 43 services relating to the provision of fruit juices, vegetable juices, drinks containing energy and/or vitamin supplements Endorsements: The trade mark consists of the sound of the word BOOST pronounced with the "OO" part of the word substantially elongated and an emphasis placed on the "T" and the sound is rendered in the sound file labelled boooost.mp3 on the CD accompanying this application.*
Trade Mark : 1156203 Status: Registered/Protected Kind: Sound Type of Mark: Device Owner/s: Nova Springwater Pty Ltd Goods Class: 32 Purified water and spring water Endorsements: Trade Mark Description: The trade mark consists of the sound of an electric piano melody and accompaniment playing the music represented in the musical score attached to the application, and as played on the CD.
Trade Mark : 1480175 SO: ENDORSEMENT-ONLY, THE SOUND OF FAMOUS TARZAN YELL Status: Registered/Protected Kind: Sound Type of Mark: Device Owner/s: Edgar Rice Burroughs, Inc. Goods and Services Class: 33 Alcoholic beverages Class: 35 the sale of non-alcoholic beer, mineral and aerated waters Endorsements: The mark consists of the sound of the famous TARZAN yell.
Conclusions: Think outside of the box. Attempt to own what is important to you. Check to see that your innovation is available for your commercial use.
TM - Availability for use and Conduct TM availability and registrability searches before using a TM in Australia. If there is a global market for the product or service, you should also consider conducting such searches overseas at the outset.
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