The jubilant Jetstar vs the triumphant Toyota: who’s got the jump on whom? Both companies invite consumers to celebrate their products; Jetstar with its ‘star’ jump, Toyota with its ‘Oh what a feeling!’ jumping poses frozen in mid air. The airline’s recent opposition to the car manufacturer’s applications for jumping trade marks serves as another reminder of the new frontiers being pushed by IP rights protection.
What’s in a jump? Can an everyday movement become a legally protected and owned sign, the rights to the use of which a company can obtain, to the exclusion of all others, on the basis that it distinguishes its goods or services from others?
Trade mark protection over ‘non-traditional signs’ (as referred to in the Trade Marks Office Manual of Practice and Procedure, ‘the Manual‘ Part 21, s 21) including applications for movements (despite these not being captured in the non-exhaustive definition of ‘sign’ under s 6 of the Trade Marks Act 1995 (Cth) (‘the Act‘) will no doubt be increasingly sought after as commercial entities seek to maximise security over the intellectual property underpinning their brand reputation.
We hope that the result of Jetstar’s opposition to Toyota’s trade mark applications answers the questions that immediately spring to our legal minds in contemplating Toyota’s prospects of obtaining trade marked jumps, such as:
- The Act s 40 proscription on registering a trade mark that cannot be graphically represented. Some of the hurdles here may be (i) whether Toyota’s graphical representations of the various jumping poses sufficiently represent what would also be presented to IP Australia in video format in accordance with s 9 of Part 21 of the Manual; and (ii) whether the graphical representations capture Jetstar’s star jump pose.
- If the jumping positions prove to be registrable marks, how much mathematical detail (for example, calculated angles) is required to protect them; and as a corollary to this, what degree of departure from those figures is required to avoid infringement?
- How does Toyota jump the ‘inherent adaptability’ hurdle? Even in conjunction with evidence of use, it will be difficult to establish that a ‘jump’ does not fall into at least one, if not several of the ordinary uses of signs outlined in the Note 1 to s 41 of the Act, such as indicating quality or value of goods or services.