The New Frontier: Country Brands and their Legal Status under Australian Trade Mark Law

Abstract

This article asks two inter-related but separate questions: first, whether a country can be a brand and second, whether Australian law recognises and protects private property rights in so-called "country brands" as trade marks. In order to answer the former, the broad concept of a brand must first be explored in an analysis of representative views from the perspective of each broad group involved in the branded environment. These are then evaluated against the notion of the country brand. Having determined that the relevant question is not whether but how country brands achieve legal status through recognition as trade marks, the criteria for registration of a trade mark are then discussed. These criteria are applied to country brands along with a consideration of other related legal issues faced by applicants of trade marks constituting country names. The relatively few registered trade marks solely constituting country names without other accompanying words or images brands on the Australian register support a conclusion that although registration is now possible, significant obstacles remain.