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This subject is about the legal protection of trade marks and elements of branding and reputation. It addresses three overlapping components. The first involves a detailed treatment of Australian law – in particular the operation of the registered trade marks regime under the Trade Marks Act 1995 (Cth) as well as the protection of trade marks and other commercial insignia under the common law tort of passing off and under the misleading and deceptive conduct provisions of trade practices legislation. The second component involves the interrogation of the growing body of academic literature that seeks to answer important theoretical and practical questions about trade mark protection from a range of historical, economic, critical and cultural perspectives. In this part of the course, students will be expected to critically evaluate questions regarding, for example, the scope of trade mark protection, the types of insignia that it should cover and what uses should be permitted by third parties in commercial and artistic settings. In addition to these questions, the subject will also look at topics such as the international trend towards expanded trade mark protection and how trade mark law has responded or should respond to new technologies and associated marketing practices. The third component of the course will look at the legal regimes in comparative jurisdictions – in particular, the United States and the European Union. This comparative element of the subject is important. Given that brand marketing is increasingly conducted on an international scale, lawyers are required to have an understanding of the legal protection of trade marks across multiple jurisdictions.
Intended learning outcomes
Students who successfully complete this subject will:
- Have a detailed, technical, advanced and specialised understanding of the operation of the trade marks regime under the Trade Marks Act 1995 (Cth);
- Have a detailed, technical, advanced and specialised understanding of the tort of passing off and the misleading and deceptive conduct provisions of trade practices legislation;
- Have integrated knowledge of the practical operation of trade mark law at a level appropriate for professional practice;
- Appreciate that the law in this field operates in broader legal, business, cultural and political contexts;
- Have an advanced ability to independently understand, research and critically analyse the various historical, economic and cultural theories and perspectives relevant to the law of trade marks, reputation and commercial branding;
- Have an advanced ability to independently understand, research and critically analyse legal and scholarly developments that contribute to professional practice in the area of trade mark law;
- Have a detailed, technical, advanced and specialised knowledge of the protection of trade marks, reputation and commercial branding in comparable jurisdictions; and
- Have the ability to communicate their analysis of the law and its application in appropriate scholarly and professional formats, and to a variety of audiences.
Students who successfully complete this subject will have developed their skills in the following areas:
- Specialist understanding, interpretation, critical reflection and comparison of trade mark law in Australian and overseas jurisdictions;
- Specialist understanding, critical reflection and comparison of the various historical,
- economic and cultural theories and perspectives relevant to the law of trade marks, reputation and commercial branding;
- Independently analysing, comparing and reflecting critically upon legal developments in the area of trade mark law;
- Specialist ability to apply relevant trade mark statutory texts and common law principles to complex fact scenarios and practical problems; and
- Developing a research question relevant to this complex field, creatively carrying out research involving diverse international sources, and preparing a substantial piece of legal writing displaying sophisticated investigation, analysis, synthesis and application of theoretical understanding.
Last updated: 8 May 2020