As the centenary of the World War I Gallipoli campaign approaches, a reminder of the restrictions on using this important national occasion and other national and official symbols to promote goods or services is timely[1].  To be precise, the use in trade or commerce of the expression “ANZAC”, including its use or registration as a trade mark, is restricted under the Protection of the Word ‘ANZAC’ Regulations[2].

However “ANZAC” is not the only word which cannot be used as a trade mark.  The Trade Marks Act 1995, Trade Mark Regulations 1995 and various other Acts and Regulations list a variety of words, expressions and symbols which may not be used as trade marks.  Many of these involve Australia’s national symbols or might tend to imply some official or government status. 

Other pieces of legislation impose broader restrictions on the use of certain words, not just as trade marks, but in certain other uses.  There are even certain words and symbols, such as defence emblems and flags, whose use will attract criminal penalties[3].

A brief description of the notable words, expressions and symbols excluded from registration or use as a trade mark is set out below.

The Trade Marks Act/Trade Marks Regulations

These prohibit the registration as a trade mark of the words:

  • 'Patent', 'Patented', 'By Royal Letters Patent', 'Protected International Trade Mark', 'Registered', 'Registered Design', 'Copyright' 'Plant Breeder's Rights', 'EL rights', the symbols ‘©’ and ‘®’; and 'To counterfeit this is a forgery'.

Also prohibited from registration are representations of:

  • the Arms, flags or seals, of the Commonwealth, States and Territories;
  • the Arms or emblem of a city or town in Australia or of a public authority or public institution in Australia; and
  • the signs of Austrade, C.E.S., Olympic Champion, Repatriation, Returned Airman, Returned Sailor, Returned Soldier.

Marks notified by the International Union for the Protection of Industrial Property

This list of prohibited marks is incorporated into the Trade Marks Regulations.  It includes armorial bearings, flags, and other State emblems of the countries of the Union and International Organisations, official signs and hallmarks indicating control and warranty adopted by them[4].

The Olympic Insignia Protection Act 1987

This Act prohibits the registration as trade marks or designs of certain words and symbols associated with the Olympic Games.

The Protection of Word ‘Anzac’ Regulations (under the War Precautions Act Repeal Act 1920)

These regulations prevent the assumption or use of the word 'Anzac' in trade or as the name or part of the name of any private residence, boat, vehicle or charitable or other institution, or any building in connexion with trade.  The Act also specifically prevents the registration of the word “ANZAC” as a trade mark.

The Geneva Conventions Act 1957

This Act prohibits the ”use for any purpose whatsoever” (which would include use or registration as a trade mark) of the symbols of the International Red Cross and International Red Crescent.

Conclusions

Beware of prohibited trade marks

Those considering registering a trade mark should check whether it contains any of the above protected symbols or words.

Seek professional advice

As well as restricting the use as trade marks of particular words and symbols, the law often also restricts the use of words and symbols resembling or having the same effect as these.  Furthermore, these prohibitions are scattered throughout numerous Acts and Regulations.  For these reasons it is best to seek professional advice on the matters discussed above.