Trade Mark Law (LAWS50075)

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.