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JacquiPryor
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Hi Amanda,

Will try and answer some of these questions for you :)

So I had my logo made and then had a design idea for my clothing line.
… there are designs along the same lines as mine as it is a common theme so I am not too sure where this sits me regarding trade marking or design protection, or if those other designs are trademarked themselves…

I am still trying to clarify and be sure on your take on the word ‘design’ here for your clothing. Is it actually the design of the garment/item itself (e.g. the shape, pattern etc) or a graphic/illustration design that you wish to print on clothing?

If it’s more a graphic design or such that you intend to print on clothing (in addition / as well as your actual logo) then you may need to consider whether someone else owns copyright in those ‘designs’, or perhaps whether similar trademarks are registered. It’s difficult to say without knowing the specific ‘design’ you wish to use for your clothing line or the ‘common theme’ others may already be using. (Feel free to shoot me a P.M with more detail and I’m happy to advise on that side further).

Design Protection tends to come in to play when you are wanting to protect a design that is new and distinctive; a design in this sense tends to protect the ‘visual look’ of a design (e.g. appearance, shape, pattern and ornamentation) that is new and distinctive. According to IP Australia’s summary “A design is what makes a product look the way it does.”

So you advise it is worth the money to protect all of this ? I have a professional graphic designer creating these for me.

I’m of course going to be in the camp that suggests it’s absolutely worth spending the money to protecty your trademarks and other IP! With the trademark for example, it’s what can give you the right to use that ‘sign’ for your goods (e.g. registering a business name doesn’t actually give you the right to use that name); Having the trademark registered also means you’ve got options to stop others that might commence use of a similar ‘brand’ for clothing in the future. Without the trademark registration, you may find it difficult to force others to stop using similar names/logos in your industry. I would absolutely encourage, at the very least, registration of your name/logo.

This comment makes me think you’re referring to an artistic design that will be printed on to your clothing (rather than a whole new clothing design)? In that case, it may not be necessary to register each and every ‘design’. If they are simply artistic works, then they’ll have copyright protection most likely (and automatically) – per my earlier post, it’s then important to ensure to know that you own the copyright, as the ownership will rest with the graphic designer in most cases by default.

I do really like my first one though and would like it associated long term with my logo.

A trademark (by definition) is something you’re using, or going to use, that distinguishes your products from the similar products of others. SO, if your first ‘design’ is an image, picture, illustration etc that you will use as a ‘badge of origin’ for your clothing (e.g. so a consumer, on seeing that ‘image’ is able to distinguish the product originates from you, rather than others) you might consider registering this and your name and your logo as trademarks, in respect of clothing.

So how is it decided if my design is my own or not ? If there are images like it already is it worth going through the process ?

Did you author the image? If not, and your designer did, refer above around copyright. Copyright is automatic, so, doesn’t need to go through a process (and no fees) in order for it to be protected. If, however, someone has registered a similar trademark for clothing, you would need to consider then whether the use of that ‘image’ is safe, or if there are risks.

Also I am getting confused by the fee’s – how do I find a simple answer for much is it to trademark stuff ? Say if I had my logo, my design, and my name ?

There’s often no simple answer, hence it’s hard to find one :)
Trademarks are registered under classes of goods (e.g. clothing) and costs are based on the number of classes you need. So, if you were to expand out of clothing (for example, let’s say bags, wallets, purses) and wish to use the same name/logo then this is a second class to clothing.

Fees also depend on the type of trademark application you file, and also whether you wish to register outside of Australia.

As the basic starting point – for Australia – noting this assumes you do your own trademark applications, each trademark will be a minimum of $250 government fee for just the clothing class. So doing a name, logo and 1 x ‘image’ just for clothing would be a minimum of $750.00. There are options, for example, to have the government office conduct an early assessment on the mark in view of the lengthy registration process, which would add to the cost.

The fee noted assumes everything goes smoothly, in which case after you apply the trademark is registered in about 7 months. Of course, if you engaged a trademarks attorney to attend to your trademark, we’d have our own fees in addition to the government fees. If there are any sorts of issues or objections you may find you need to seek professional assistance and as such additional fees are likely to apply.

Also is it on a yearly basis or once you have it it is yours forever ?
Trademarks are registered for 10 years, and can be renewed each 10 years.

Good luck :)