A Trade Mark can be a letter, number, word, phrase, sound, smell, shape, logo, picture, aspect of packaging or any combination of these. It is used to distinguish goods and services of one trade from those of another. This means you can't register a Trade Mark that directly describes your goods (eg radios) and services (eg electrician).

A Trade Mark cannot be, or be part of, the name of a plant variety (Section 27(5(e) of the Plant Breeder's Rights Act 1994). However, it is possible to use a Trade Mark in conjunction with a variety name, with the variety name having equal prominence (see frequently asked questions about Plant Breeder’s Rights on the IP Australia web site). For example, it might be decided to market a range of varieties under the Trade Mark Elle. So that one might have Elle ‘Celebration’, Elle ‘Anniversary’ or Elle ‘Applause’. For Rules on naming a new plant variety for PBR click here.

The reasons why a varietal name cannot be Trade Marked are set out on the IP Australia web site (search "Varietal names") and include:

• Trade Marks have a different function from a variety name - The name of a plant variety, does not distinguish the trade origin of plants of that variety. It is the generic name that identifies the plant itself and plant material of the variety, and people should be able to use it freely.
  
• To avoid confusion or deception: if a name deceptively similar to it, was to be used as the whole or part of a trade mark on plants of another variety, it would be likely to deceive or cause confusion
  
• To avoid breach of the PBR Act section 27.

A Trade Mark must be distinctive from all other elements. Distinctiveness means that the mark must be able to do the job of distinguishing the applicant’s goods and/or services from those of other traders. Marks that merely describe the goods and/or services in respect of which they are used (eg 'macadamia nuts', 'onions') or a quality of those goods/services (eg, 'fresh', 'tasty'), or the geographical origin of the goods and services (eg, 'Riverina', 'Adelaide Plains') are common examples of marks that lack inherent distinctiveness. The key is whether the mark has been used to such an extent that it has come to be understood by consumers as an indication of the source of a particular trader’s goods and/or services. The registered mark 'Sunraysia' (registered for fruit juice) is such an example.

If a plant is marketed under a Trade Mark without Plant Breeder’s Rights protection, a purchaser may propagate and sell the variety without approval from the Trade Mark holder provided they do not use the Trade Mark.

For more information on naming a new plant variety go to Section 4.10 of this Guide.

Go to Section 2.3 Copyright

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