3.4 Graphic representation

Section 5 of the Act defines a trade mark as:

… any sign capable of:

(i) being represented graphically; and

(ii) distinguishing the goods or services of 1 person from those of another person.

A “sign” is defined¹⁷as including a brand, colour, device, heading, label, letter, name, numeral, shape, signature, smell, sound, taste, ticket or word. “Sign” also includes “any combination of signs”. The definition of “sign” is an inclusive definition, therefore may include other “signs” that are not specifically listed.

In order to qualify as a trade mark, the following requirements must be met:

• The mark must be a sign; and
• The sign must be capable of being represented graphically; and
• The sign must be capable of distinguishing the goods or services of one person from those of another person.

As the definition of “sign” is inclusive, a very wide range of marks may qualify as a sign. However, a sign will not qualify for registration as a trade mark if it is incapable of being represented graphically and/or incapable of distinguishing the goods or services of one person from those of another.¹⁸

As well as containing a clear graphic representation of the mark in order to obtain a filing date,¹⁹ the mark must also be capable of being represented graphically before it can be accepted.

A description in words alone is not likely to be accepted as a graphical representation of a trade mark. However, there are circumstances where a description in words, if sufficiently precise, is acceptable.

Footnotes