Movement marks recognised by Trade Marks Office
A few years ago, there was a flurry of interest in whether Toyota had exclusive rights in the “jump” featured in its TV commercials and whether this would be infringed by Jetstar using a different “jump”. At the time, there was no clear guidance whether a movement per se could be the subject of a trade mark. Although some registrations did include an animated character, protection applied to the character in different poses rather than to the actions or gestures made by the character.
Recent amendments to the Trade Mark Examiner’s Manual now make specific reference to moving images, holograms and gestures as trade marks. Like all trade marks, the mark must be graphically represented, and this will require a clear written description of a moving image or gesture, together with representations demonstrating the movement or gesture. The representations may be in the form of video clips, or may comprise a series of “stills” showing different views of a hologram. The Manual notes that the description must use positive terms such as: “the trade mark appears in the representation”. Terms such as: “the trade mark appears as exemplified in the representation” are not acceptable.