Getting IP ready for India-Australia Economic Cooperation and Trade Agreement (ECTA)

The Free Trade Agreement between India and Australia, signed in April 2022, finally came into effect on December 29, 2022. As a result of the Economic Cooperation and Trade Agreement (ECTA), the market share of Indian Products is expected to increase from USD 10.5 Billion to USD 20 Billion in the next five years. The trade agreement between the two countries is set to mainly impact the textiles and apparel industry alongside various manufacturing industries. China’s share in the import of apparel into Australia is more than 70 percent, and India’s share is less than 5 percent. Thus, Indian apparel exporters are looking at the massive opportunity with tariff reduction.

While there is no requirement to register a trademark for the export of goods or sale of goods in Australia, there are significant benefits to seeking registration. Any business or entrepreneur who aspires to create its brand identity will invest in seeking trademark registration. The time and resources that companies spend in building their goodwill and reputation make it imperative to protect them.

We have put together trademark protection and enforcement tips for businesses that wish to expand their footprint in Australia, taking advantage of ECTA.

  1. Before use in Australia, availability searches are recommended in order to ensure that the proposed trademark use does not infringe any prior registration or use. 
  2. Registration of a brand in Australia provides an exclusive right that can be relied upon to prevent the use of a substantially identical or deceptively similar trademark in respect of goods or services for which the trademark is registered, and often in respect of similar or closely related goods or services. 
  3. It is an offence to refer to a trademark as registered or identify it using the ® symbol unless it is registered in Australia or it is otherwise made clear that the registration reference is a reference to registration in another country.
  4. A licensee will typically require the licensor to register the trademark before taking a licence, and the licensor should register the trademark in order to protect their position as its owner;
  5. Applications are examined for formalities, inherent registrability, and conflicts with prior rights.
  6. As regards inherent registrability, aside from descriptive words, geographical words are usually challenging to register, and common surnames are not considered inherently registrable;
  7. Three years after a trademark is registered, the registration will become vulnerable to full or partial cancellation in respect of goods or services for which it has not been used in the preceding three years. However, full or partial cancellation will only occur if a third party applies for such cancellation, and the Registrar has the discretion to decide what goods and/or services the mark should be removed for.

The trademark registration procedure in Australia is equipped with artificial intelligence databases for a smooth registration process. Generally, it takes 1.5 to 2 years for a mark to be granted registration.

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