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Pitfalls when using symbols or emblems in trade marks

2 min read
22 November 2022

Key Takeaways

  • Certain symbols and emblems are protected.
  • Take care to ensure your trade mark design isn’t too similar to these protected symbols and emblems.
  • Seek expert advice prior to using your trade mark to ensure it doesn’t contain any infringing symbols or emblems.

A trade mark helps a business to distinguish the goods or services it offers.  The use of symbols or emblems as part of a trade mark, particularly in the medical space, is not uncommon however there are certain symbols or emblems that are considered protected and therefore can’t be used in a trade mark. Monique Burr discusses what businesses should be aware of when designing their trade marks. 

The use of a symbol like a cross with reference to businesses providing medical services is commonplace but there are some important considerations that must be had when using a cross and in what colours. Certain types of crosses are considered protected such as the Red Cross or Swiss Confederation Cross.   

Under section 42 of the Trademarks Act 1995 (Cth) a trade mark must be rejected if it contains or consists of ‘scandalous matter’ or if its use would be contrary to law.  In the use of a cross, Part IV section 15 of the Geneva Convention Act 1957 makes it an offence to use the Red Cross and other emblems, signs, signals, identity cards, and insignia as specified in section 15(1)(a) to (d).  In Australia, using the Red Cross emblem (or similar) requires written permission from the Minister of Defence.  

If a trade mark design contains a cross with vertical and horizontal arms of the same length and is the colour red (or colours close to red) then a trade mark application is likely to be rejected.  If a trade mark is rejected a business may need to consider re-designing their trade mark which would cost more time and money and for businesses who are just starting out, their trade mark is likely to encompass their brand. This will be similar if a trade mark design was to use a red frame in the shape of a square similar to that used in the Red Crystal symbol or a red crescent completely surrounded by a white ground like the Red Crescent symbol. 

It is important when designing your trade mark (by yourself or through a design company) that you are not using any protected symbols or emblems.  This can include:

  • Being aware of the shapes used in your trade mark design; and
  • Avoid using colours that are likely to mislead as to the nature of the symbol or emblem.

Using an infringing trade mark can be a costly and timely expense particularly where a business needs to begin trading before it can register its trade mark. Before lodging a trade mark that contains symbols or emblems you should consider obtaining independent expert advice. 

Hillhouse Legal Partners has experience in dealing with matters relating to intellectual property. Please contact us by email or on 07 3220 1144 should you be seeking further guidance on trade mark or any other intellectual property matters.

The information in this blog is intended only to provide a general overview and has not been prepared with a view to any particular situation or set of circumstances. It is not intended to be comprehensive nor does it constitute legal advice. While we attempt to ensure the information is current and accurate we do not guarantee its currency and accuracy. You should seek legal or other professional advice before acting or relying on any of the information in this blog as it may not be appropriate for your individual circumstances.

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