History of registered trade marks

The registration of trade marks was a reasonably natural development beyond the law of passing off. While passing off had and still has numerous advantages, it is inadequate in some respects as a means of facilitating the exploitation of signs used to indicate the origin of goods or services or as a means of defining and regulating property rights.

The first United Kingdom trade mark legislation was passed in 1875 and the Australian colonies followed the legislative lead of the United Kingdom in due course. All of the Australian colonies had their own trade mark legislation at the time of Federation and the first federal trademark legislation was the Trade Marks Act 1905 (Cth) which largely mirrored then United Kingdom legislation. The next Australian legislationwas the Trade Marks Act 1955 (Cth) which also largely mirrored the United Kingdom legislation of 1938 although some key differences were emerging at that time.

Since then, Australia has passed two more trade mark acts although only one of them ever came into effect. The Trade Marks Act 1994 (Cth) was intended to come into effect on 1 January 1996 but it contained a number of flaws and it was deemed more appropriate to simply repeal it before it came into operation. It was replaced by the present legislation, the Trade Marks Act 1995 (Cth) which did come into effect on 1 January 1996.