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The Classification System

 

 

The Classification System

All the various products and services available to the consumer cover a vast array of markets, distribution channels and areas if expertise. It has long been recognised that the same trade mark can be used by two different traders for very different products, without any confusion arising in the minds of the purchasing public. For example, Sebel Furniture Limited uses the trade mark INTEGRA for chairs whilst the same trade mark is used for urinals by Caroma Industries Limited and cars by Honda Motor Company. Since these three products are so very different, and sold through very different outlets, there is no question of any confusion arising as to the source of the product.

In order to allow trade mark applications, and registrations, to be allocated to certain classes, a classification system needs to be adopted. There is an international classification system which was initiated in 1934 and formally agreed to in 1957 in the French city of Nice, and is therefore referred to as the Nice Agreement.

Australia and many other countries of the world utilise this agreement, however, unfortunately not all countries utilise the agreement. It sometimes happens when filing foreign trade mark applications that, in order to provide the same coverage as is provided by a single Australian application or registration, it is necessary to file two or even more foreign trade mark applications. Progressively most countries are changing their classification system to the international classification system, so increasingly such problems will be a thing of the past.

A brief outline of the international classification is as follows:

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Product Classes

  • Industrial and agricultural chemicals, resins, plastics and glass
  • Paints, wood preservatives, and dyes.
  • Soaps, other cleaning preparations, perfumes, cosmetics and toothpaste.
  • Industrial and automotive oils and greases, and fuels
  • Pharmaceuticals, veterinary chemicals, herbicides, and rat poisons.
  • Non-precious metal products and general hardware.
  • General machinery and agricultural implements but excluding automotive products.
  • Hand tools, cutler and razors.
  • Scientific and electrical equipment, cameras, computers, vending machines and cash registers.
  • Surgical, medical and veterinary equipment and instruments.
  • Lighting, heating, refrigerating, drying, ventilating and water supply apparatus and plant.
  • Motor vehicles, aircraft, boats and trains.
  • Firearms, ammunition and fireworks.
  • Jewellery and clocks.
  • Musical instruments.
  • Stationery, office requisites and books.
  • Plastics pipes and sheets, insulating materials.
  • Leather articles, bags and umbrellas.
  • Building materials.
  • Furniture and miscellaneous plastic articles
  • Pots and pans, kitchen utensils, glassware and hairbrushes.
  • Rope, string, tents, tarpaulins and sacks.
  • Yarns and threads for sewing.
  • Fabrics, manchester and blankets.
  • Clothing and shoes.
  • Haberdashery.
  • Carpets and other floor coverings.
  • Toys and sporting equipment.
  • Meat, fish, poultry and dairy products.
  • Coffee, tea, bread, confectionary and condiments.
  • Fruit, vegetables, grains and live animals.
  • Beer, mineral water and aerated soft drinks.
  • Wine and spirits.
  • Cigarettes, tobacco, matches and ash trays.

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Services Classes

  • Advertising and management services.
  • Banking, insurance, and real estate agency.
  • Consulting engineering, building trades, and equipment hire and repair.
  • Radio and TV broadcasting, and facsimile transmission agencies.
  • Freight and travel agencies, and motor vehicle hire.
  • Dyeing, polishing, and metal plating articles owned by other persons.
  • Teaching, entertaining and animal training.
  • Miscellaneous including restaurants, the professions, computer programming and hairdressing.

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Classification Requirements

From reading through the above list, it will be seen that there is considerable logic in the way things are arranged in that each of the classes represents either a specific type of retailer (for example tobacconists) or a specific department in a department store (for example fabrics and Manchester). Also represented are specific uses or applications. For example, various chemicals, all of which might well be made by the same manufacturers, if used in agriculture are in Class 1, if used as a soap or cosmetic are in Class 2, but if used as a pharmaceutical are classified in Class 5.

These different approaches and requirements for the classification system lead to various classification problems. For example, is an ash tray made of gold an ash tray or a piece of jewellery? The determination made by the international classification is that ash trays made of previous metals are in Class 14, whereas ash trays which are not of precious metal are classified in Class 34.

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Classification Problems

Problems can also arise due to the classification of products which is sometimes carried out on the basis of the construction or form of the product, rather than the use to which it is put. Thus, one finds that hair curlers are classified in Class 26, hand implements for hair curling are classified in Class 8, hair curling machines are classified in Class 7, hair curling pins are classified in Class 26, hair dryers which are not machines are classified in Class 11, but hair drying machines are classified in Class 7. Electrically heated hair curlers, meanwhile, are classified in Class 9.

It follows from the above example that deciding in which class a trade mark application should be lodged is often not easy and the benefit of past experience able to be offered by a patent attorney is of substantial assistance. Since it is essential for the purposes of infringement that the specification of goods (or products) or the classification of services of the trade mark registration include the infringing product or service, it is important that the product or services be correctly classified in the first instance. It may not even become apparent during examination that a substitute or equivalent article is not covered by the product specified in an application.

For example, a manufacturer of hair curlers and hair curling machines may correctly apply to register his trade marks in Classes 26 and 7, only to find that his trade mark is copied by a competitor who sells electrically heated hair curlers. Since electrically heated hair curlers are classified in Class 9, the sale of these products cannot infringe a trade mark registration in either Class 26 or Class 7.

There are some apparent anomalies which, although an anomaly at first sight, are not really so on consideration. For example, shoes are classified in Class 25, but shoe polish is classified in Class 3. However, when one realises that shoe shops either do not sell shoe polish at all, or sell very little of it, whilst the bulk of shoe polish is purchased at a supermarket, then the classification which at first appears strange is seen as correct.

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Our dedicated team can assist you with any queries you have with regards to the classification systems and all matters relating to developing or protecting your Intellectual Property. Complete and submit the Express Enquiry form on the top right hand side of this page and we will contact you to discuss your enquiry or call us on 1300 QUINNS (1300 784 667) or on +61 2 9223 9166 to arrange an appointment.