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Misspelt Trademarks

The Chinese technology giant Huawei Technologies Co Ltd has applied to register trademarks which contain spelling errors of their name ‘Huawei’. The applications include ‘Wuawei’, ‘Wawei’, ‘Huawey’, ‘Huawi’ and ‘Huawe’. In light of these applications and recent trademark trends, we examine whether you can trademark a name which is deliberately misspelt.

Purpose

We expect Huawei’s purpose is to protect their business interests and brand. With a brand such as Huawei it is common for people to be able to pronounce the business name but have trouble remembering the spelling of it. For these reasons, it is smart for Huawei to trademark as many similar names as possible to ensure another person does not use a similar name resulting in a decrease in sales for Huawei. However, the practice goes against the principles of trademark law which are designed to prohibit a monopoly in the market.

Can a Misspelt Name be Trademarked?

In our view a misspelt name cannot be trademarked as the business is unlikely to be using the misspelt name. Under the Trademarks Act 1995 (Cth) (Act) a trademark is a sign used, or intended to be used, to distinguish goods or services. This means that at the time of applying for the trademark, Huawei must be able to show that they are currently using or intend to use the misspelt versions of their business name. However, even if Huawei are able to have their trademarks registered, it is likely that the trademarks will be removed under the Act by:

  • a third party applying for IP Australia to remove the trademarks for lack of use; or
  • a third party making an application in Court to remove the trademarks on the basis that they could have opposed the trademarks prior to registration pursuant to point (a) above.

Is it Necessary?

It is definitely not necessary to trademark similar names to that of your business. The reason being that a trademark already protects the owner against another person using a substantially identical or deceptively similar mark. Under the Act a mark is:

  • substantially identical when it contains a lot of similarities, particularly if the similarities are in the main features of the trademark; or
  • deceptively similar when it so nearly resembles that other trademark that it is likely to deceive or cause confusion.

It is likely that using a name such as ‘Huawe’ would be found to be substantially identical, if not deceptively similar to Huawei.  However, it is advantageous of Huawei to apply to register the trademarks and save the cost of later proving another name is substantially identical or deceptively similar. Of course, with registering the trademarks, Huawei run the risk of paying legal fees and IP Australia fees for trademarks which will not be registered or are likely to be removed.

If you need assistance registering your trademark, please contact a member of Taurus Legal Management today on (03) 9481 2000.

Posted by Taurus Legal Management

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