Mixing with the best!
Trade marks and copyright
Legal rights – yours and ours
To all our Customers, Enthusiasts, Bloggers, Social Media Addicts, Authors and Competitors It has been love at first sight for some. Raving fans have passionately embraced Thermomix ® in Australia and New Zealand and for many the name and the product excites, inspires and has lots of us talking and sharing recipes and experiences. We all feel proud about the quality of the product, the health benefits it offers and continually being surprised and excited with new recipes. The continued success of the Thermomix ® products has created a number of concerns in respect to breaches of trade mark and copyright whether by the innocent actions of passionate owners or by competitors leveraging from the success of Thermomix ® internationally. Such breaches can impact the core values of the product that we all wish to protect. We hope that the following information will assist those of you who would like to understand what you can and can’t do legally and how to work with us to enhance, rather than detract from, the Thermomix ® brand.
A. What is a trade mark (Wikipedia)
“A trademark, trade mark, or trade-mark is a distinctive sign or indicator used by an individual, business organisation, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, designated for a specific market, and is used to distinguish its products or services from those of other entities. A trademark may be designated by the following symbols:
- ™ (for an unregistered trade mark, that is, a mark used to promote or brand goods)
- ℠ (for an unregistered service mark, that is, a mark used to promote or brand services)
- ® (for a registered trademark)
A trademark is typically a name, word, phrase, logo, symbol, design, image, or a combination of these elements. There is also a range of non-conventional trademarks comprising marks which do not fall into these standard categories, such as those based on colour, smell, or sound. The owner of a trademark may initiate legal proceedings for trademark infringement to prevent unauthorised use of that trademark. Most countries require formal registration of a trademark in order to pursue this type of action.” In Australia it is (mostly) two words, “trade mark”, in the United States it is (usually) “trademark”.
Protecting the trade mark
Thermomix ® in Australia and New Zealand, as a company, believes we have an obligation to protect the Thermomix Brand and Image here in Australia and New Zealand for all Thermomix ® owners. In both countries, the Thermomix ® Brand and logo is legally protected through trade marks and registrations and associated State and Federal Government Legislation or Acts, including the Copyright Act. As can be the case with any violation or breach of trade marks or copyright we do appreciate that some of these actions are innocent and are at times done with the best of intentions. In other situations however, this is not the case. We have no wish to punish innocent breaches of enthusiasts and in these cases aim to work together to guide them and to allow them to correct their position. However, when others try to leverage off the success of our product in the market for their own benefit – then, our approach is different. In the event that there is misuse of trade marks or copyright or where the Thermomix ® Brand and Image is used either without authority or inappropriately, we must take reasonable and appropriate action on behalf of all stakeholders up to and including the use of rights that we are offered through Legislation and Acts within Australia and New Zealand. This, we believe, ensures Thermomix ® owners and Customers can continue to have confidence in the product that they love.
How Thermomix ® enthusiasts may refer to the product.
As we are all aware, Social Media and the Internet offers a great opportunity to share our experiences and the things we like and have become passionate about. The impact of this has been both positive and negative for brands such as the Thermomix ® brand. We are aware that many Thermomix ® enthusiasts nationally and internationally are using the Internet to share recipes, information and their excitement about the Thermomix ® product and its uses. Several unofficial sites, forums and blogs have been established. Some of these unfortunately use Thermomix ® trade marks in a manner that may lead Consumers to become confused about whether these sites, forums or blogs are in fact sponsored or authorised by Thermomix ® in Australia and / or Vorwerk. It is our belief that Customers and those passionate advocates of Thermomix ® should be treated in a manner that does not mislead. While it is difficult to set hard and fast rules about proper use to cover every situation, we have developed some guidelines and information that follows:
1. Thermomix ® trade mark cannot be used in an Internet Address
The Thermomix ® trade mark should not be incorporated into an Internet address. Internet addresses have become synonomous with home pages of brands and using “THERMOMIX ®” in the domain name would be creating a misleading impression that the website, forum or blog is in some way sponsored by Thermomix ® in Australia and New Zealand and/or Vorwerk.
2. Use of the Thermomix ® logo cannot be used on Unofficial Web Sites
The Thermomix ® logo incorporating the blades (image) has become a highly recognised trade mark and a symbol of the quality of the product. Thermomix ® and Vorwerk cannot allow the risk of having this diminished in any way and therefore the Logo can NEVER be used on unofficial sites.
3. Use of the Thermomix ® trade marks under Limited Circumstances
The Thermomix ® trade mark (Never the Logo) may be used in some non-commercial sites (Never in a Commercial site) when only referring to the product and not in a way that it could be mistaken that the site is being endorsed or authorised by Thermomix ® in Australia and New Zealand or Vorwerk.
4. Use of the Thermomix ® trade mark
If the Thermomix ® trade mark is used at all, it should be generally used as an adjective not as a noun. The trade mark should always appear in the same typeface as the surrounding text and should not be set apart or emphasised in any way including for example being displayed in bold print or highlighted in colour font or shading. It should have a capital “T”. The unofficial use of the Thermomix ® trade mark in any title or sub title of a Publication (Print, Web or Video) will NEVER be allowed. The use of the trade mark in “meta tags”, as headings, or in any way that may be being used to emphasise product association will NEVER be allowed on an unofficial web site.
Disclaimer
A Disclaimer should be used when the Thermomix ® trade mark is used on a website, blog or forum. This should say: “Thermomix ® ” is a registered trade mark of Vorwerk International AG (Vorwerk) in Australia & New Zealand and Thermomix ® in Australia Pty Ltd (Thermomix ® in Australia) is its authorised user and exclusive distributor in Australia and New Zealand of Thermomix ® products. Neither company supports, authorises or endorses this site”. The use of the Disclaimer does not serve to undo or make good any incorrect use of any trade mark or logo or breach of Copyright.
B. What is Copyright (Wikipedia)
“Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time. Generally, it is “the right to copy”, but also gives the copyright holder the right to be credited for the work, to determine who may adapt the work to other forms, who may perform the work, who may financially benefit from it, and other related rights. It is an intellectual property form (like the patent, the trademark, and the trade secret) applicable to any expressible form of an idea or information that is substantive and discrete. While many aspects of national copyright laws have been standardised through international copyright agreements, copyright laws of most countries have some unique features. Most jurisdictions recognise copyright limitations, allowing “fair” exceptions to the creator’s exclusivity “of copyright, and giving users certain rights.”
Thermomix ® images, recipes and other copyright materials.
Both Thermomix ® in Australia and New Zealand and Vorwerk own copyright in recipes and various instructions and publications and photographs used in recipe books, packaging and other marketing literature. Using these in anyway, without permission, including copying, scanning and distribution (regardless of the media source) is an infringement of our copyright. In many instances Thermomix ® recipes are naturally copied and / or scanned and used. Providing these are unaltered and for non-commercial use or gain, or not being used in a way that could be misleading, then Thermomix ® in Australia and New Zealand could consider this “fair use” and generally not object to this. However, use of any copyright material without permission for commercial benefit is an infringement of our rights and we will take action to protect these rights. In respect to those who may wish to publish their own recipes that use a Thermomix ® and / or in any way operate in a Commercial undertaking that associates itself with Thermomix ® products we suggest that you seek independent legal advice to ensure that you are not in any way breaching trade mark or copyright laws. We understand that most product users want to respect the rights that exist around trade marks and copyright, but are not clear about what is OK and what is not. It is for this reason that some companies provide information to assist in understanding the importance and need for protection of their trade marks and copyright. We therefore hope that this information is of assistance, however as the world of the Internet and, in particular, Social Media changes we may see the need to update this information. Finally we want to thank all Thermomix ® users for their passion about cooking, using their Thermomix ® products and for sharing their experiences.