Racial Discrimination Act 1975 - Assignment Example

Case Study Name Institution Part 1 Question 1 A trademark is defined as a sign whose use is meant to distinguish goods or services dealt with in the course of trade from other goods or services that are provided by another person.1 A trademark is, therefore, a sign that a person uses to distinguish their goods or to maintain an identity for their goods that is different from what is offered by other people.2Ella’s drawing was supposed to increase the number of subscribers her blog. This was part of her trade since she was a journalist offering services to the customers who subscribed to her blog. Her blog can be regarded as a form of trade. The use of the drawing was meant to distinguish her blog from others and ultimately market the blog to more customers. This means that the drawing fits the description of a sign that may be registered as a trademark under section 17.3 The Trade Marks Act 1995 further states that a trademark may be registered under the Act where the trademark is in respect to goods, services or both goods and services.4 This means that there is no restriction of registering a trademark in respect to a service. Ella was a journalist whose role was to inform the public on any issues that happened around her. She was offering a service to the public hence her drawing may be registered in accordance with section 19 of the Act. Since Ella’s drawing is capable of registration, it follows that Jimmy would have grounds to oppose the registration. The Trade Marks Act provides for certain circumstances where a person is allowed to raise opposition to the registration of a trademark. Jimmy can, therefore, rely on the provisions of the Act to oppose Ella’s registration of the symbol as a trademark. Some of the grounds that Jimmy can raise in opposing the registration of the trademark include the fact that Ella was registering the trademark in bad faith and that she is not the owner of the mark she has applied to register.5 Jimmy could rely on the documents he had pertaining to his intention of using a similar symbol as the new logo for Animal Enclosure Advertising. This would show that the symbol did belong to Ella, but rather it belonged to Jimmy. According to Part 5 of the Act, an opponent can raise a claim on the symbol that the applicant intends to register by showing that the applicant is not the owner of the trademark or that the opponent has used a similar mark before. Jimmy could claim that he had designed a similar symbol that was to be used as the new logo for his advertising firm. However, Ella could argue that the logo was not yet in use, but Jimmy had rather intended to use. If Jimmy could show that they had already started using the symbol as the new logo for the advertising firm, Jimmy could oppose the registration based on the fact that the symbol was too similar to the one they used. In Kimberley-Clark Worldwide Inc. v The Reject Shop Limited [2015] ATMO; the court rejected the registration of a trademark on the basis that the sign that was to be registered was too similar to one that was already in use. This means that Jimmy could use such an argument to oppose the registration.6 Further, Jimmy could also argue that the attempt to register the trade mark by Ella was not in good faith.7 Jimmy could argue out this fact if he could show that Ella had access to documents that contained the symbol. This would mean that she copied the symbol from the documents that Jimmy had prepared. The fact that she was using a stolen symbol which was to be used as the logo for Jimmy’s advertising log meant that she was acting in bad faith. This would mean that she should not be allowed to register the drawing as a trademark. Based on these arguments, Jimmy could oppose the registration of the trademark. For Jimmy to be successful in opposing the trade mark, he must make the application for the opposition to the registration within three months from the date of the publication of the acceptance of the application.8 Question 2 The preamble to the Australian Journalists’ Association Code of Ethics provides the respect for truth and honesty is a fundamental principle of journalism. Assuming that Ella was a member of the Media Entertainment and Arts Alliance, she would be in breach of the code of ethics based on the provisions of the preamble to the code. The respect for truth and honesty is an important aspect of the practice of journalism. By acquiring the drawing in a dishonest way and using it on her blog yet Ella knew that Jimmy wanted to use the drawing as the new logo for the advertising firm, Ella breached the provisions of the preamble to the code of ethics.9 Clause 4 of the Journalist’s code of ethics provides that journalists have an obligation to ensure that they do not allow personal interest to undermine fairness, accuracy or independence. In this case, Ella knew that Jimmy intended to use the drawing as the new logo for the advertising firm. She was aware that the firm was rebranding and that the drawing would be the new logo. Since she was looking for a way to popularize her blog, she decided to use the same drawing on her blog though with a few modifications. By doing so she breached clause 4 of the code of ethics since she allowed her personal interest, which was to popularize her blog, to stand in the way of ensuring fairness and accuracy in her reporting. The use of the drawing to attract more subscribers would result in unfair treatment of Jimmy who had invested his time and effort in coming up with the drawing. Further, clause 8 of the Journalist’s Code of Ethics states that journalists have an obligation to ensure that they use fair, honest and responsible means to obtain material. The material used to make the drawing she was to use on her blog was acquired by dishonest means. This also includes the information that she relied on in writing the story. She, therefore, breached clause 8 of the code of ethics.10 Clause 10 also requires journalists to avoid plagiarism in their work. This means that they should not use other people’s work without acknowledging the source. The use of the drawing on her blog amounted to plagiarism since the original drawing was Jimmy’s work. Question 3 The Racial Discrimination Act 1975 makes it unlawful for any person to perform an act when not in private where the act is likely to offend, humiliate, insult or intimidate another person or group and when the act is done based on the race, national or ethnic origin, or colour of the person.11 This provision, therefore, makes it unlawful for any person to make any offending remarks against another person on the basis of how they look or their origin. In her article, Ella referred to Sally as another conquest for the handsome heart-throb, Jimmy. Further, she wrote that, “White Australian girls sure do get easily sucked in when it comes to good looks. What ditzy brainless women they are.”In the statement contained in the article, Ella referred to white Australian girls as ditzy brainless women. According to section 18C (1), an act made on the basis of a person’s colour or background becomes unlawful when it is likely to offend, insult or humiliate the person. The reference to white Australian girls as ditzy brainless women was not only insulting to them but also offending and humiliating. This means that Ella’s conduct is unlawful under section 18C (1).12 Further, the statement made by Ella was not private. The Act provides that an act is not considered to have been done in private when such an act causes words to be spoken that are communicated to the public, where the act is done in a public place or where it is done in the presence of people in a public place.13 Ella had posted the article, which contained the statement, on her blog which had at least a hundred subscribers. This means that all the subscribers had read the article and the statement. The statement could, therefore, be considered to have been communicated to the public. Ella committed an unlawful act under section 18C of the Act. Section 18D provides that a person will not be considered as having committed an unlawful act where such act was done in good faith and in the public interest.14In this case, Ella wrote the statement in the article to further her own agenda which was to popularize her blog. The statement had no elements of public interest and nor was it made in good faith. This is because when Ella sees Sally and Jimmy together she feels disappointed since she had fantasies about her and Jimmy being in a relationship. Her statement can, therefore, be regarded as having being made out of jealousy hence not in good faith. There are no exemptions that apply to Ellaunder section 18D. Part 2 Question 4 b. A reference to engaging in conduct includes a reference to Ella doing or refusing to do any act.15 Question 5 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.16 Question 6 d. Ella is able to sell, transfer or assign her copyright in the article.17 Bibliography Ricketson, S., Richardson, M., & Davison, M. (2012). Intellectual property: cases, materials and commentary. LexisNexis Butterworths. Media Entertainment & Arts Alliance (2013). Journalists’ Code of Ethics. Retrieved November 5, 2015, from: http://www.alliance.org.au/documents/codeofethics.pdf Parliament of Australia (2013). Parliamentary privilege. Retrieved November 5, 2015, from: http://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Brief_Guides_to_Senate_Procedure/No_20 Attorney General’s Department (2015). Short guide to Copyright. Retrieved November 5, 2015, from: https://www.ag.gov.au/RightsAndProtections/Documents/ShortGuidetoCopyright-October2012.pdf Racial Discrimination Act 1975 (Cth) Trade Marks Act 1995 (Cth) Read More