Daniela is starting a catering business that specialises in Peruvian food. She largely caters for private events and parties, but has aspirations to run a food truck serving the same kind of food. She initially calls it Dani’s Peruvian Fine Foods, but decides to come up with something shorter and more memorable. She settles on the name “The Tasty Llama”. She also draws the following logo (Figure 1), which she will apply to her food packaging and potentially her food truck:Daniella wants to protect the branding of her new business. Answer the following questions (and relevant sub-questions), which will assist Daniella in determining how she can best protect her brand under the Trade Marks Act 1995 (Cth):

1. What is a trade mark? What aspect(s) of her brand may Daniella seek to register under the Trade Marks Act 1995(Cth)? In which class of goods/services and with what description of goods/services should Daniella register her proposed mark(s)?
2. Do existing marks on the trade mark register pose as an impediment to the registration of Daniella’s proposed mark(s)?

Please respond to Question 2 by taking the following steps:

• Explain why Daniella should be concerned about existing registered trademarks. State the relevant legal issues and explain the applicable rules.
• Conduct a search on the Australian Trade Mark Search portal. Choose ONE registered trade mark that is most likely to give rise to concerns, and apply thelaw identified above in (a) to the facts. Please then conclude on whether Daniella is likely to be able to register her proposed mark(s).

1. Assume that Daniella’s proposed mark(s) cannot be registered under Question 2. How should Daniella proceed in order to register a trade mark for her new business? Please suggest practical alternatives that may be open to her.