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This subject is concerned with the laws in Australia and New Zealand that protect trade marks. Trade marks play a pivotal role in the marketing of goods and services, and generally are one of a trader‘s most valuable assets. The protection of trade marks is thus of critical importance to all traders but is also important to consumers, who rely on the information conveyed by trade marks. This subject concentrates on the trade mark protection regime provided by the Trade Marks Act 1995 (Cth), and involves a detailed study of the provisions of this Act and related case law, together with relevant aspects of the corresponding New Zealand laws and cases. The action for passing-off and actions for contravention of the Australian Consumer Law provisions in the Competition and Consumer Act 2010 (Cth), and corresponding New Zealand statutory provisions, proscribing misleading and deceptive conduct are also covered.
This subject meets the Trans-Tasman IP Attorneys Board (TTIPAB) requirements for ‘Topic Group C’.
Principal topics include:
- The function of trade marks
- Registration of trade marks under Australian and New Zealand laws
- Infringement, defences and remedies
- Licensing and assignment, and other exploitation of trade marks
- Removal and cancellation of registration
- Management and maintenance of trade marks
- The action for passing-off and actions for contravention of the Australian Consumer Law provisions in the Competition and Consumer Act 2010 (Cth) proscribing misleading and deceptive conduct and the corresponding provisions under New Zealand law
- Other protections for name and insignia, including the domain name system.
Intended learning outcomes
A student who has successfully completed this subject will
Have an advanced and integrated understanding of the legal principles
- for obtaining, maintaining, protecting and exploiting a registered trade mark in Australia and New Zealand; and
- for protecting a trade mark otherwise than by registration in both countries.
They further will:
- Be able to critically examine, analyse, interpret and assess the effectiveness of these legal principles
- Have the cognitive and technical skills independently to examine, research and analyse existing and emerging issues relating to trade mark law
- Have a sound appreciation of the factors and processes driving parliamentary revision of the legal framework
- Have an advanced understanding of the application of the legal principles in the context of advising and assisting clients with the preparation of their trade mark applications, initiating or defending any opposition or non-use removal applications, and the maintenance and exploitation of their clients' rights, once granted
- Have the communication skills to clearly articulate and convey complex information regarding legal issues in trade marks law to relevant specialist and non-specialist audiences, including clients
- Have the skills and ability to apply their knowledge to new situations encountered in their practice as a trade marks professional
- Have the cognitive and technical skills to generate critical and creative ideas relating to substantive law issues in the field, and to critically and independently evaluate existing legal theories and principles
- Be able to demonstrate autonomy, sound judgment and responsibility as a practitioner and learner in the field of trade marks law.
- Be an engaged participant in debate regarding emerging and contemporary issues in the field such as regulating the parallel importation of trade marked goods, the granting of anti-dilution protection to well known trade marks and the introduction of laws prohibiting unfair copying or unfair competition
- Have a detailed understanding of the limitations of the regime for protecting unregistered trade marks
- Have a detailed understanding of situations which give rise to difficulties in obtaining, maintaining and protecting registered trade marks.
Last updated: 11 February 2021