A Test for the "Test" of Distinctiveness - The Saga Continues...
Sarah Hinchliffe, Harvard Law School (Visiting Scholar); Boston University (School of Law); University of Melbourne (Department of Accounting, firstname.lastname@example.org); Barrister and Solicitor (HCA, Vic), Australia & USA
A primary consideration prior to registering a mark for or on behalf of a client is whether it is “distinctive” as opposed to merely “descriptive”. In recent times, examiners in Australia appear to have become increasingly stringent about whether a mark is indeed “distinctive”.
Take away points for practitioners:
• An increased threshold for “distinctiveness” in Australia may be seen to encourage innovation as opposed to create a monopoly;
• A “distinctive” mark is not the same as “well-known” mark;
• Distinctiveness may arise in a registration context as well as in defensive actions.
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