Trade Marks Act 1995 - Assignment Example

Law of Communication Student’s Name Institutional Affiliation Date Law of Communication (1). A trademark is a sign used in business to indicate that goods or services come from a particular trader. A trademark can be in form of a phrase, a word, a letter, a name or a signature, a logo, a symbol or a picture. A person who owns a particular trademark in Australia has the authority to stop another person form using a similar mark, Trade Marks Act 1995. 1 Whether a person can stop or prevent the use of his/her trade mark outside Australia depends on the trade mark laws of other countries. It will also depend on the person’s use of the trade mark in the foreign countries and whether the marks are registered under the trad mark laws of the countries. Ella’s Drawing is capable of registration under the Trade Marks Act 1995 and Jimmy would not have any ground for opposing the registration. Jimmy’s company is in the process of changing its logo. The logo has neither been launched nor gone public. Ella happens to come across papers that contain the new logo that impresses her whereby she designed a similar logo to use on her ‘My Opinion Is Relevant Hash tag.’ According to the Trade Marks Act 1995, several factors are stated for ownership, registration and opposition of a registered trade mark. 2 At first, it is seen that Ella has indeed stolen the intended trade mark for Animal Enclosure Advertising. This is because she comes up with a drawing with features similar to those of Jimmy’s company logo, changing only a few things. The act is against the trademark law which implies that if one uses of a sign that is deceptive and confusing with another sign already in use, she/he will be infringing the trademark rights of the original owner. However, Jimmy’s sign is not registered or known to the public in terms of advertising the product of his company. In other words, the sigh is not considered as a standard trade mark. A standard trademark is defined as a sign used or intended to be used to distinguish goods or services provided with a person from another person. Even though Jimmy intends to use the logo as the definition states, it is not clear whether the logo is under the process of registration or not. Logos under the process of registration are eligible for protection under the act irrespective of whether they are known to the public or not. In such circumstances, the owners can oppose the registration of the logos if another person intends to register. Jimmy will only have the ground to oppose the registration of a similar sign if he has already started the registration process before the sign comes into use, Trade Marks Act, 1995. The Australian defensive trademark law differs from the standard trademark and is powerful covering all the goods and services that the owner has no intention of using their trademark. According to s17 of Trade Marks Act, 1995, for one to oppose the registration of such trademarks, she/he must prove that the sign used is a well-known mark in Australia. S185 of Trade Marks Act, 1995 states that evidence of the reputation must be provided before a registration or opposition to that particular sign is filed. In Jimmy’s case, this defense is not available as the logo is yet to be introduced to the public. The only thing known to the public is that the company intended to change its logo and Ella must have heard the information through the media. It is difficult for a defense applicant to prove that the stolen mark is the intended new logo for his company. The applicant for a defense against the use of his/her logo must already own a registration for his/her well known mark. Jimmy can apply for a defense in the mark that has been in use.3 The act further clarifies the aspects of identifying a well-know mark for the concept of protection to be applied in the case where trade mark rights are thought to be infringed. Apart from the uniqueness of the mass as stated earlier, the extent and duration of use suggest whether a mark is well known or not. The logo has no time in its use since it is yet to be introduced. For the purposes of proving that an infringement has really occurred, the degree of reputation of the mark or whether the mark is considered to be well-known depends on the individual circumstances of each case. The law does not define a stipulate percentage of population that is affected by the reputation. However, it must be within the geographical area that defendant is making allegations of misrepresentations and the level of purchasers being addresses by the misrepresentations.4 The awareness of the mark varies depending on the relevant market and its size. A part form the statutory rights above, the common law suggests that both owners of registered and unregistered trademarks but have acquired a reputation in Australia are entitled to protect their rights. Such owners can also protect their trademark rights under the consumer protection legislation which prevents misleading and deceptive conducts such as false representation, s 52 of Trade Practices Act 1974.5 With this regard, Ella’s trade mark may not obtain immediate registration but can continue to be in use while still under the process of registration until when the logo shall gain popularity. Even when he finally realize that his logo is being used by somebody else, it will be difficult to defend himself since Ella will have already presented the registration documents to the Registrar of Trade Marks in Australia. In this particular case, Sally could only find remedy if he had successfully registered it as a defensive mark. (2). Respect for the rights of others: Ella, indeed, has disrespected Jimmy’s right to privacy by opening his briefcase. The AJA code of ethics requires that journalists respect the rights of other people in whatsoever case (AJA Code of Ethics, 1994). Apart from disrespecting Jimmy’s rights, she goes ahead to infringe his trademark rights by producing a similar logo and intending to use the logo for her personal interests. Ella has not only disrespected the rights of Jimmy alone but also the rights of the entire population of Animal Enclosure Advertising. The customers attached to the company’s products and ode of advertising will be confused about the logo just in case they find it being used by another person. They may eventually lack trust in the company if in any case they are deceived by a logo that resembles the one for their entrusted provider. 6 Fairness and Honesty: Ella is not honest and fair for deciding to use someone else’s logo for her businesses. It is unfair to steal or use somebody else’s idea without their permission (AJA Code of Ethics, 1994). Furthermore, she is planning to use the logo to woo more subscribers implying that she is intending to deceive the public. The public will be deceived by a symbol that is not an original mark of her online businesses. Plagiarism: The AJA code of ethics requires that journalists come up with new ideas. By producing a mark that has similar characteristics to Jimmy’s intended logo, Ella has, definitely, stolen the ideas of somebody else so as to apply for her personal gains. The AJA code of ethics fosters on the idea of originality for all journalists in the information that they intend to pass across . 7 (3). Under s18C of the Racial discrimination Act 1975, it is unlawful for a person to perform an act that offends, insults, humiliates or intimidate another person or a group of people. The act further expound on race, color or the national ethnic origin of a person or a group of people. The acts become unlawful through the modes in which they are communicated through such as words, sound, images or writings communicated to the public. After knowing about Jimmy’s relationship with Sally, she makes a public editorial of how white Australian ladies are easily lured into relationships with handsome men. She talks of them as being brainless women. The statement has demoralized white Australian ladies of their reputation in terms or relationship with men. We may talk of Ella as not being a white Australian lady and that’s why she might have made such public allegations regarding Sally and white women in general. We can remember that she was also lured by the handsome nature of Jimmy and wished that he were her lover of the 21st century. 8 The information being published in the Trail blazer is capable of reaching many people and the white Australian ladies in particular. However, the section does not render unlawful something that is considered reasonable or which is done in good faith such as in the exhibition and performance of an artistic works. The law holds exceptions also in the case of a genuine debate or scientific or academic works. The exceptions are also in the publication of events and matters of public interest as well as a fair comment on a matter of public interest. By publishing the above allegations, Ella might not be exempted from prosecution over her statement since the tone and intention or her words were not for the above reasons. She expresses her feelings about the young Australian women possibly because she had learned that her secret admirer had already been taken away. In reference to the Australian Communication and Media Authority Act2005, the information published about the white Australian ladies qualifies to be defamatory. According to the Australian communication and media act, the information becomes defamatory if the third party accesses the information.9 This might be communicated through any means such as publications, pictorially or orally to at least one person other than the person being referred to. Since the information was published in the Trail-Blazer Magazine reached the third party, who are the readers and their interpretation about the message was not in good faith for white Australian ladies. Even if the intention of the writer was not in bad faith, the interpretation of the readers and errors can result the information liable for defamation. The media and communication act says that for information to be defamatory, the plaintiff must be identified in the message.10 In this particular case, though, the discriminatory information does not identify a specific person; white Australian women in general have been abused. Their color will, from now hence forth, betray them of the issues of looseness to handsome men. The law of communication also emphasized that any information that lowers the dignity of a person qualifies to be defamatory. The dignity of white women has been lowered by the published statement. The law of communication stipulates that the literal meaning of the information may not be important but the ordinary reader’s interpretation of the information is what matters. The exception found in s18D of The Racial discriminatory Act 1975 may not apply as defense in this case since the issue of the fair comment is embedded in the literal meaning of the published information.11 The facts from Ella’s case have enabled the discussion of the trade mark law in details which have expanded our understanding of the law in details. From the discussion however, it appears that there seem to be some contradictory information about the racial discrimination act and the communication and media act. The racial discrimination act provides exceptions for the issue of fair comment whereas the communication and media act may not fully take into account the issue of fair comment since the meaning of a defamatory information is derived from a common readers’ understanding. Part 2 - Multiple choice questions Which of the following statements is true in relation to the application of section 18(1) of the Australian Consumer Law to Ella’s conduct? (1 mark) A subjective test must be applied, so it will be necessary to prove that at least one person was misled by Ella’s conduct. If a Senator for the ACT made a statement in the Senate accusing Ella of engaging in deceitful conduct, which of the following statements is incorrect? (1 mark) Ella could not commence defamation proceedings against the Senator for defamatory statements made about her in the Senate. Which of the following statements is true in relation to Ella’s copyright in her article ‘The Next Bond Girl’? (1 mark) It was not necessary for Ella to write the article in order for her to obtain copyright protection in the idea of Jimmy and Sally having an affair. References Legislations Australian Communications and Media Authority Act 2005 (Cth) s44 Trade Marks Act 1995 s (Cth) 17 Trade Marks Act 1995 s (Cth) 52 Trade Practices Act 1974 (Cth) Racial discriminatory Act 1975 (Cth) s18C Racial discriminatory Act 1975 (Cth) s18C Journals Breit, R. A. (2008). Journalistic Self-Regulation in Australia Is it Ready for the Information Society? International Communication Gazette, 70(6), 505-528. Cornish, W., Llewelyn, G. I. D., & Aplin, T. (2013). Intellectual property: patents, copyright, trade marks & allied rights. Websites AJA Code of Ethics (1994) Australia Code: Australian Journalists' Association Code of Ethics – See more at: http://www.rjionline.org/MAS-Codes-Australia-AJA#sthash.D0iPhi6X.dpuf Read More