Is Ellas Drawing Capable of Registration under the Trade Marks Act 1995 - Assignment Example

Trade Marks Name: Lecturer: Course: Date: (1)Is Ella’s drawing capable of registration under the Trade Marks Act 1995 (Cth) and would Jimmy have any grounds for opposing the registration? (10 marks) Section 41(1) of the Trade Marks Act 1995 stated that in applying for the registration of a trade mark, it becomes liable for rejection when it cannot distinguish the applicant's designated goods or services ) from those of others. Ella’s drawing is not capable of registration under the Trade Marks Act 1995 (Cth) as it does not distinguish the type of services she is offering1. The argument is reinforced by Section 41(3)(a), which states that the trademark application should be turned down when it is not intrinsically tailored to differentiate the designated services from those of others2. A relevant case law is that of Kenman Kandy Australia Pty Ltd v The Registrar of Trademarks3, where six-legged bug shape for a trademark by a confectionary was denied registration as it was believed that other businesses could legitimately want to use some form of bug shape as trademarks. The court also held that the trademark needed to have at least something that could distinguish the products. Ella obtained the logo from Jimmy’s documents that she had stolen from his car. The logo represented the services Jimmy’s advertising agency offered, as it was specifically for the Animal Enclosure Advertising. In which case, the lion represented the new service dubbed “Animal Enclosure Advertising.” Indeed, the company was rebranding itself and the logo was part of its rebranding scheme. On the other hand, Ella cannot adequately argue that the lion logo represents any services she offers. By description, the logo consists of a graphic showing cartoon lion seated facing the right. The lion’s tail is poised on the ground. It also has a purple nose, and a smirk on its face. None of these features represents Ella’s services or designated services that are worth registering for as trademark. In fact, Ella’s key motivation for using the logo is that it looks cute, rather that it is representative of what services she intends to offer. Therefore, Ella’s drawing is not capable of registration under the Trade Marks Act 1995 (Cth). At any rate, it is also significant to establish whether Jimmy has any ground for opposing the registration. Under this second scenario, it is argued that Jimmy has grounds for opposing the registration of the trademark. Under Sect 57 of the Trade Marks Act 1995, registering a trademark may be denied on the basis of any ground for which the Trade Marks Act 1995 specifies except for cases where the applicant cannot represent the trademark graphically. On the account, it could be argued that since Ella can represent the trademark graphically, the trademark is subject to rejection under the Act. At this level, section 58 of the Trade Marks Act 1995 can be applied to gain grounds for rejecting the trademark. It stipulates that when trademark can be rejected when the applicant is not the owner of the trademark4. Indeed, since Jimmy is the owner of the copyright and has evidence to show this, he can oppose the registration of the trademark. In the case study, it is indicated that Ella had stolen the logo from Jimmy’s car. This alone brings sufficient evidence to indicate that the logo originally belonged to Jimmy. At any rate, since the logo represents Jimmy’s service firm, which is rebranding to offer Animal Enclosure Advertising, the logo is representative of his designate services under the Trade Marks Act 1995 (Cth)5. Indeed, the company was rebranding itself and the logo was part of its rebranding scheme. Conversely, Ella cannot adequately argue that the lion logo represents any services she offers. This is despite the fact that she made minor adjustments to the logo to face the right with its head turned back to the left and three hashtags around the lion. On a different perspective, Jimmy can still take action against Ella for trade mark infringement, by asserting that Ella’s lion is likely to be confused with his company’s. For these reasons, Jimmy can file a counterclaim arguing that Ella’s trademark need to be invalidated as it may be registered in bad faith6. Based on the case law of Kenman Kandy Australia Pty Ltd v The Registrar of Trademarks, Jimmy could challenge the registration arguing that Ella is acting in bad faith by registering the trademark despite knowing that it is in use by Jimmy, and intended to mock him after writing an article about him and Sally. In conclusion, Ella’s drawing is not capable of registration under the Trade Marks Act 1995 (Cth). Jimmy also has grounds for opposing the registration of the trademark. (2) Assuming that Ella is a member of the Media Entertainment and Arts Alliance, has she breached the AJA Code of Ethics? In your answer, discuss three relevant sections of the Code. (6 marks) Ella has breached the AJA Code of Ethics in several ways. The journalist's Code of Ethics demands that journalists should respect the truth and the right of the public to information as an dominant principle. Code 1 requires that journalist should report and interpret news with meticulous honesty by refraining from distorting facts through improper emphasis. However, in the case study, Ella is seen to have distorted facts. For instance, she For instance, just by seeing Sally and Jimmy laughing and holding hands as they walked toward Jimmy's house, she assumed that "Sally has become another conquest for the handsome heart-throb." She never confirmed her assumption. Code 4 further states that journalist should not let personal interests to sway their professional duties. However, as we see in the case study, Ella allowed her personal interests to influence her motivation for reporting about Jimmy and Sally. Initially, Ella had had second thoughts regarding quitting her career in journalism. However, the story gave her the motivation to keep her options open. What this shows is that publishing a story on Sally and jimmy inspired her personal interests to stay in the career. Code 7 further states that journalists should only use fair and honest means to acquire information for their reports. This is however not the case. Ella broke into Jimmy’s car to steal some documents that she used to give her a lead on her story. Stealing is not fair and honest means. (3) Has Ella committed an unlawful act under section 18C of the Racial Discrimination Act 1975 (Cth)? In your answer, discuss whether any exemptions in section 18D apply. (8 marks) A central legal issue is whether Ella breached section 18C of the Racial Discrimination Act 1975 (Cth). According to section 18C (1)(a) of the Act, a breach of the act comes about when an individual acts in a way that is not private in a manner that is likely to insult, intimidate, offend, or humiliate another individual or a group of individuals. In the case study, Ella insults, intimidates, and offend White Australian girls (a group of individuals) by mentioning that they do easily get “sucked in when it comes to good looks.” She further calls them brainless. Clearly, Ella has breach section 18C (1)(a) of the Act7. Again, section 18C (1)(a) of the Act further stipulates that the act that is in breach is the one undertaken due to colour, race, ethnic or even national origin of the individual or individuals insulted or humiliated8. By mentioning “White” Australian women are “brainless,” Ella’s statement is viewed as being racist. As required by Subsection (1) of the Act, Ella’s act is unlawful as she communicated it to the public through her blog ‘My Opinion Is Relevant Hashtag.’ Exemption However, section 18D of the Racial Discrimination Act 1975 offers an exemption that Ella can use. In particular, section 18D(c)(ii) stipulates that Section 18C would not render an act unlawful when it is said logically and in good faith in publishing a fair comment on an issue of public interest when the comment expresses of a genuine belief that a person who makes the comment hold. Part 2 - Multiple choice questions [Select one answer (ie. (a), (b), (c) or (d)) for each question only - there is no need to provide an explanation] (1) 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. Ella will only be considered to be engaged ‘in trade or commence’ if she is carrying on a business or commercial activity for profit. b. A reference to engaging in conduct includes a reference to Ella doing or refusing to do any act. c. A subjective test must be applied, so it will be necessary to prove that at least one person was misled by Ella’s conduct. d. Section 18(1) only applies to natural persons such as Ella, not corporations. (2) 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) a. Ella could not commence defamation proceedings against the Senator for defamatory statements made about her in the Senate. b. Ella could commence defamation proceedings against the Senator for defamatory statements the Senator repeated verbatim in the front courtyard of Parliament House. c. The Senator will be able to use the defence of absolute privilege in relation to defamatory statements the Senator tweets while sitting in on Question Time. d. Larry Looselips, who reports on the Senator’s comments, will be able to use the defence of qualified privilege for a defamation action if he provides a fair report of the Senator’s comments made in the Senate. (3) Which of the following statements is true in relation to Ella’s copyright in her article ‘The Next Bond Girl’? (1 mark) a. Ella will need to register the copyright through IP Australia in order to obtain copyright protection. b. 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. c. Copyright will subsist in Ella’s article for 70 years from the date of publication. d. Ella is able to sell, transfer or assign her copyright in the article. References Austlii 2015, "Trade Marks Act 1995," Commonwealth Consolidated Acts, 5 Nov 2015, Australian Human Rights Commission 2015, At a glance: Racial vilification under sections 18C and 18D of the Racial Discrimination Act 1975 (Cth), viewed 5 Nov 2015, Christensen, S & Duncan, W 2008, Sale of Businesses in Australia, Federation Press, Riverwood Davison, M, Manotti, A & Wiseman, L 2011, Australian Intellectual Property Law, Cambridge University Press, Cambridge IP Australia 2013, A guide to applying for your Trade Mark, viewed 5 Nov 2015, Kenman Kandy Australia Pty Ltd v Registrar of Trade Marks - [2002] FCAFC 273 Read More