Star jump or high jump.

Jetstar versus Toyota.

It may sound like an unfair contest, a plane versus a car. Surely once the engine fires up Jetstar will be first to fly past the post. However, this battle of the engines will not necessarily be as straightforward as a simple 2-person race towards the finish line, given the evolving rules applied by IP Australia in relation to these type of trade marks.

Backstory.

Toyota has used the familiar jumps as part of their ‘Oh, What A Feeling!’ campaign for approximately 30 years, and Jetstar have used the straight-legged star jumps in their marketing since the airline’s launch in 2004.

2012.

In 2012, Qantas Airways Limited (owner of subsidiary Jetstar) opposed a number of Toyota Motor Corporation’s ‘movement marks’, for their much advertised ‘Oh what a feeling’ jump. IP Australia has moved towards accepting ‘movement marks’ in recent times, allowing the holder to ’protect a motion in relation to goods or services.’

2013.

In 2013, Qantas lodged its own movement marks, being the Jestar star jump. Toyota has since opposed Qantas’ movement marks.

Striking similarities.

The similarities between the movement marks applied for by both parties are striking taking into account the visuals of a star jump and straight legs which will make for interesting arguments between the parties on how the marks are differentiated.

Trend of non-conventional trade marks.

Certain types of non-conventional trade marks have become more widely accepted in recent times. These may be visible signs (eg. colours, 3D shapes, moving images or holograms) or non-visible signs (eg. sounds, scents, tastes or textures). The trend of colour trade marks has been active in Australia. Previous disputes relating to colour trade marks include Telstra and Phone Directories Company over the colour yellow1, Virgin Blue and its overseas parent in relation to ‘V Australia’ and Cadbury and Darrel Lea over the colour purple2.

Next steps (jumps!) for Qantas and Toyota.

Qantas and Toyota are currently in confidential negotiations and no evidence has yet been filed with IP Australia in support of the opposed movement marks. No doubt this will be an animated and perhaps protracted negotiation, leaving the victorious party jumping for joy when it is settled.