Creative ways of protecting beverage industry...
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Transcript of Creative ways of protecting beverage industry...
Creative ways of protecting
beverage industry innovations
Presentation by Gint Silins, PhD
- 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)
Patents (for protecting innovations)
- Packaging, e.g. containers, dispensers
- Shapes of products, e.g. tablets
- Manufacturing equipment
10 year term (must be new and distinctive)
Design Registrations
(for protecting industrial designs)
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 three-
dimensional 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.
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.
TM - Availability for use and ®
Thank you
www.cullens.com.au
Brisbane
Gold Coast
Townsville