Creative ways of protecting beverage industry...

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Creative ways of protecting beverage industry innovations Presentation by Gint Silins, PhD

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.*

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.

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