IPA trademark 1.-the-trade-mark-as-property — IP Australia Trade Marks Manual of Practice and Procedure – 19B.1. The trade mark as property

Property is a bundle of rights or interests that attach to a thing. Property rights attach to things that are either tangible (e.g. a car or house) or intangible (e.g. intellectual property). Property is generally divided into two major categories – real property (land) and personal property. A registered trade mark is a form of personal property ( subsection 21(1) ). A trade mark that is subject to an application for registration is also personal property. This is evidenced by subsection 106(1) , which provides that ‘trade marks for which registration is sought’ may be assigned or transmitted, and Part 11 , which allows for voluntary recording of a claim to interest in respect of same. Rights in a trade mark are enforceable in the same way as rights in any other personal property. Trade mark owners may take a civil action to protect their rights, as may other persons with a legal or equitable interest in the trade mark. A registered owner may deal with the trade mark as absolute owner, subject to any rights appearing in the Register to be vested in another person ( subsection 22(1) ). However, this provision only protects a purchaser in good faith for value without notice of any fraud on the part of the owner ( subsection 22(2) ). A right recorded in the Register that is a Personal Property Securities Act security interest (PPSA security interest), defined in section 6 , does not affect the owner’s ability to deal with the trade mark ( subsection 22(2A) ). Any equitable interest in a registered trade mark may be enforced against the owner ( subsection 22(3) ), unless it is a PPSA security interest ( subsection 22(4) ). See Part 44 Claim of Interest or Rights in a Trade Mark for more information on claiming an interest in a trade mark.