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just got an email back from ipaustralia: sorry it is long it seems
their application is prob not going to get through anyway..
still dont understand how the other application went ahead though..
i basically sent an email asking about registrability, the application in progress
and the application that got approved the other year...
Trade mark applications for common words may be acceptable - as long as those words are not being claimed as a trade mark for the goods they describe. For example, Apple Computer Inc. have registrations for the word "Apple", a common English language word. However, they use the trade mark APPLE in relation to computers, goods for which the word APPLE has no descriptive use. The trade mark is inherently capable of distinguishing Apple Computer Inc.'s goods from those of other traders. If, however a person applied for the word APPLE in relation to goods which were apples, or apple juice, or goods consisting primarily of apples etc, they would find it difficult to gain acceptance of their trade mark - other traders have a legitimate requirement to use the word APPLE in relation to apples and apple products, as it describes the goods, or the flavour / type of goods.
However, there is provision under the Trade Marks Act 1995 (the "Act"), subsection 41(6), for traders to provide sufficiently overwhelming evidence that through long use of a trade mark, and the way the trade mark has been used and advertised, that the trade mark, although a common descriptive word, has become distinctive in the mind of the public as identifying the trade origin of the goods. An example of such a trade mark is the word WHOPPER. "Whopper" is defined in the Macquarie Dictionary as "Colloquial 1. something uncommonly large of its kind.", and as such, is a term that other traders have a legitimate reason to use to describe their "uncommonly large" goods. However, through the provision of evidence of use, Burger King Corporation have achieved acceptance and registration of WHOPPER for the limited goods of "burgers". They established to the Registrar! 's satisfaction that the average consumer associated the word WHOPPER with Burger King Corporation in relation to "burgers".
How did 939581 MODCHIP get registered?
This application sought to register the mark MODCHIP for the services of : "Retail services including online services". Consequently, the mark is capable of distinguishing the services of the trader from those of other traders. The owner/s of trade mark registration 939581 have gained no statutory rights over the use of the word MODCHIP for "mod chips". The have achieved registration for MODCHIP in relation to their claimed services only.
The service of retailing in respect of the Act is a specific thing. It is not necessarily the sale of your own goods. Retailing, from the perspective of the Trade Marks Act can be described as "the gathering together of the goods of other traders, for the convenience of consumers to view and purchase". For example, Myer, David Jones, Harvey Norman, Dick Smith Powerhouse, Woolworths - these traders provide retail services.
Registration of MODCHIP for retail services does not prevent other traders who make, install, repair or sell "mod chips" from using the term in the normal course of trade. You can continue to describe the goods as "mod chips" - because that is what they are.
If a trader wants to apply to register a trade mark to gain statutory protection for their goods, the application should be made in respect of the goods themselves.
What will happen with application 1084596 for the mark MOD CHIPS?
While this application has not yet been examined, the trade mark is MOD CHIPS. The goods on which they are seeking protection are "Computer Game related programs, Game console related programs". Bearing in mind what I have said above about the registrability of trade marks in respect of goods or services, and the legitimate use of descriptive words by traders in the same field, it is likely that application 1084596 will face some difficulty in achieving acceptance.
Examination of trade marks
In general, when an application is examined, we conduct research (internet research and library searches) in respect of the trade mark's capability to distinguish (Section 41), and we also conduct searches of the Trade Mark Register for possible conflicting trade marks (Section 44). Other tests are also applied. However, if we accept a trade mark for registration, a 3 month opposition period applies where any third party may oppose the registration of a mark.
Opposition of a trade mark
Anyone may oppose the registration of a trade mark - you can find information on how to lodge an opposition on the IP Australia website, at this URL http://www.ipaustralia.gov.au/tradem...ositions.shtml .
great letter from IP Australia there Shanefra.. pretty much goes to support what the barristers ive talked to are saying..
by the way i recieved a 6-page "how to object a trademark" from the newspaper i mentioned in my previous post.. Pretty funny to see they are on our side to the point where they are even trying to school us on how to stop "mod chips" from becoming a trademark..
yes its an excellent read, they are pretty professional...
im engaged in a series of emails with ipaustralia's senior examiner
trying to convince him that the first modchip trademark is flawed
he has been coutering everything i can throw at him with well
thought out articulate replys... damn lawyers can make it sound
like anything they say must be right...
Keep in mind this is a buisiness, and with any buisiness is competitive by nature. This (at the top) is not a punk community **** sony movement, it is molded and held up by people who make money from it. Since what we do is grey area (it does affect the Mom and Pop game sellers, especially the ones that sell used games) it is inherently unethical. That hasn't stopped me, or any of you guys, and I am not passing judgement.
But this is the real world of capatalism, and do any of us really hav a leg to stand on about the "ethics" of our buisiness. There are none. were pirates, plain and simple.
So I encourage people to take my advice and not to think about our punk type community and to embrace the system and MAKE AS MUCH MONEY AS POSSIBLE. There is a fortune to be made at this game. Many of us (me included) have made $5.000 a WEEK at this. Become rich, NOW.
In regards to the guy suing, I can't imagine that he would take this right to court. I have been threatened too. I just ignore him. But if need be, we all pool together and somehow remove this guy becxause the market can support all of us, plus many more. (at least up here in Canada).
What he is doing whether it be unethical or not, is just buisiness. We need to learn how to deal with this type of thing and recognize that the system can be sleazy, however unfortunate it may be. Adapt or die.
guys update heard nothing back yet.. he is still trying to get his trademarks passed
danzig 5000$ per week? u gotta be kidding me? competition here in Perth has defenitely increased massively over the last two years, and profits have been cut.. I fink another problem is that three years ago 90% of Perth ppl used to holiday in Bali, Singapore, KL, HK etc... That number since the bali bombing, australian embassy in jarkata, and other problems in asia has plumeted..
I dont totally disagree with you danzig, i certainly see from the other point of view completing a degree in games development / computer science. That being said while i feel for the mom & dad game stores (who have been battered by EB's Australian takeover as well) & small game developers i have no sympathy for Sony. Lets face it, they have continued to sell a horribly unreliable product for 10 years crushing several prominent game companies in their wake..
Essentially the only reason Sony havent been able to stop modchips in Australia is because of their region-encoding & their monopoly of distribution channels The Australian Consumer Conmissiontime & tiime have stood up for consumers in the case of chips vs Sony, however its only a matter of time before a sizable contribution to the money-hungry Liberal government swings that point of view to introduce new legislation