Business Intellectual Property Of Writing Assessment Answer

QUESTION
Daniela is starting a catering business that specialises in Peruvian food. She largely caters for
private events and parties, but has aspirations to run a food truck serving the same kind of
food. She initially calls it Dani’s Peruvian Fine Foods, but decides to come up with something
shorter and more memorable. She settles on the name “The Tasty Llama”. She also draws
the following logo (Figure 1), which she will apply to her food packaging and potentially her
food truck:

Daniella wants to protect the branding of her new business. Answer the following questions
(and relevant sub-questions), which will assist Daniella in determining how she can best
protect her brand under the Trade Marks Act 1995 (Cth):

Continue to the next page for questions

1. What is a trade mark? What aspect(s) of her brand may Daniella seek to register under
the Trade Marks Act 1995 (Cth)? In which class of goods/services and with what
description of goods/services should Daniella register her proposed mark(s)?
(4 marks, 300 – 400 words)
2. Do existing marks on the trade mark register pose as an impediment to the registration
of Daniella’s proposed mark(s)?
Please respond to Question 2 by taking the following steps:
(a) Explain why Daniella should be concerned about existing registered
trademarks. State the relevant legal issues and explain the applicable rules.
(b) Conduct a search on the Australian Trade Mark Search portal. Choose ONE
registered trade mark that is most likely to give rise to concerns, and apply the
law identified above in (a) to the facts. Please then conclude on whether
Daniella is likely to be able to register her proposed mark(s).

[Note that this is the only aspect of this assignment that requires use of the four-
step process/IRAC method. Your response to 2(a) would consist of steps one

and two, while your response in accordance with 2(b) would be steps three and
four. See the explanation of the IRAC method under Submission Instructions]
(8 marks, 700 – 900 words)
3. Assume that Daniella’s proposed mark(s) cannot be registered under Question 2. How
should Daniella proceed in order to register a trade mark for her new business? Please
suggest practical alternatives that may be open to her.

Question 1. 

What is Trademark?