“Come on Aussie Come On” (That’s a trade mark too)

So what’s all the fuss about Lleyton Hewitt failing in a bid to remove ‘Come on’ from the trade marks register?  The airwaves have been abuzz with the story today.  It appears Hewitt had sought to remove a 2004 trade mark featuring ‘Come on’ with a fist pump, which he regards as his proprietary gesture.

The story suitably inspired listeners to ABC 774 (Melbourne) to call in with the phrases they too would like to – ahem – ‘copyright’.  The discussion involved much gnashing of teeth that Lleyton might now be prevented from using his own catch phrase.
 
Before we worry too much Lleyton, it is worth observing that he has his own brand strategy, witness exhibits A and B below which are both on the trade marks register as well.
 

There are also a range of other trade marks for ‘C’mon’ on the register, by presumably unrelated parties.
 
It is of course a misnomer to assume that a trade mark confers an absolute monopoly.  First, the trade mark is limited to the scope of the goods or services covered.  A use will typically only infringe if it is in the context of similar goods or services. 
 
Secondly, the sign must be used as a trade mark in a commercial setting, to distinguish one’s goods or services from those of others.  Everyday use will not be regarded as an infringement. To the contrary, the consistent descriptive use of, say, a pen as a ‘biro’ is a path which can lead to cancellation of a trade mark on the grounds that the word has become ‘generic’. 
 
Thirdly, IP Australia is careful not to permit registration of words in every day use, unless they are accompanied by something which makes them distinctive.  Therefore, ‘c’mon’ by itself is unlikely to be registrable unless it’s used in an unexpected context (eg to brand soaps and perfumes), or if the presentation is distinctive (eg a stylised ‘C’ and/or graphic of man pointing hand to face).
 
This fight is therefore not about Lleyton’s spontaneous desire to shout ‘C’mon’ when beating Roger Federer.  Rather, it’s presumably about his desire to commercialise the logo on products consistent with his brand identity, and avoid the risk of treading on the toes of a trade mark owner with a prior claim.

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