As you will see later, the answer could depend on the Trade Marks Act 1995 (Act).

Trademarks serve to identify the source of goods or services and prevent confusion in the marketplace.  They help consumers choose products they know and trust, and they also protect businesses from unfair competition.

In Australia, a trademark is a type of intellectual property that protects a business’ brand, products, or services, and there is a registration process with IP Australia.  The process involves searching for existing trademarks, applying, and potentially facing examination and opposition periods.

Registering your trade mark gives you:

  1. An asset. The more successful your enterprise becomes, the more valuable your trade mark becomes.
  2. The legal right to place the ® symbol next to your trade mark.
  3. Exclusive rights to use your trademark in Australia.
  4. Increased ability to legally deter others from using your trademark.
  5. The ability to sell your trademark, or license it for others to use.

Non-profit organisations and charities can register trademarks and often do so when they develop an iconic fundraising venture.

The first piece of trademark legislation was passed in England in 1266 under the reign of King Henry III. It was a set of rules known as “the Assize of Bread and Ale”, which regulated the size, weight and price of bread as well as the purity of flour to protect consumers.  Bakers had to use a distinctive sign to mark their bread, allowing regulators to identify the origins of a loaf.

Beyond mere identification, the mark functioned as an early form of quality assurance, signifying that the bread was produced by a recognised baker operating under the Assize’s regulations. The baker’s seal could also differentiate between types of bread, as bakers of white bread were often prohibited from making brown bread and vice versa. This measure protected consumers and maintained consistent quality by preventing the substitution of less nourishing bran.

A recent case involving 2 charities came before the Court regarding a trademark.

The National Cancer Foundation (NCF) was a charity that sought to raise funds to support cancer prevention and treatment. The NCF decided on a “Brown Nose” theme for bowel cancer fundraising and awareness, and applied to register the Trade Mark – “Brown Nose Day”.

The trademark examiner found that Red Nose Limited had Trade Mark registrations for, amongst other marks, RED NOSE DAY (RND) and a series mark including the words NOSE DAY and various colour variations (but not brown!). However, the examiner decided that “Brown Nose” was sufficiently different.

The Trade Mark was accepted for registration, advertised and as no notice of opposition was filed, the mark was entered on the Register of Trade Marks on 15 December 2020.

Nearly a year later, the solicitors for RNL wrote to the Registrar requesting the revocation of the Trade Mark on the basis that the examiner had erred in failing to raise an objection to Brown Nose being substantially identical or deceptively similar to their mark during the examination process.

The Deputy Registrar of Trade Marks issued a written Notice of Intention to Revoke Registration to the NCF. He advised that the Registrar proposed to revoke the registration of the Trade Mark on the basis that a ground for rejection should have been raised against the mark at the examination stage, as the Trade Mark was substantially identical or deceptively similar to the RND marks.

NCF appealed to the Court.

NCF argued that there was no basis to be satisfied that the Trade Mark should not have been registered.

The Court[1] found that the Trade Mark was not deceptively similar to any of the RND Marks as:

  1. the word BROWN readily distinguishes the Trade Mark (visually, orally, and conceptually) from the RND Marks;
  2. the commonly understood and distinct colloquial meaning of the words BROWN NOSE (that is to say, someone who is a sycophant, or someone who flatters or tries to carry favour) strongly distinguishes the Trade Mark as to its meaning and the concept it conveys from the RND Marks;
  3. RED NOSE also has a distinct and well-known connotation concerning comedy, often being associated with clowns. The Court agreed that this meaning also points away from any connection with BROWN NOSE DAY; and
  4. that charitable donations are a highly involved category, leading consumers to give careful consideration to what donations they might make. There was expert evidence that consumers will try to make sense of the differences between trademarks associated with charitable causes and use those differentiators to navigate the highly saturated space of various charities.

 

The Court rejected the argument that the Trade Mark was deceptively similar to the RND Marks and therefore NCF retained the trade mark “Brown Nose Day”.

While you may have thought of many good lines to end this note, we would simply suggest that charities should ensure their intellectual property is protected, and one way to do this is through a registered trademark.

[1] National Cancer Foundation v Registrar of Trade Marks [2025] FCA 711