Trade Marks Act 1995 - Assignment Example

RАDЕ МАRKS АСТ 1995 (СТН), СОDЕ ОF ЕТНIСS, RАСIАL DISСRIМINАТIОN АСТ 1975 (СТН) Name Institution Date Questions: Part 1 – Problem questions (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) Ella’s drawing is capable of registration under the Trade Marks Act 1995 (Cth). The reason is that the drawing is within the definition of a trademark as per the Trade Marks Act 1995 (Cth). According to the Act, the drawing of Ella can be categorised as a Standard Trade Mark. Section 17 of the Act defines a Standard Trade Mark as a sign that is used or it is intended to be used for the purpose of distinguishing goods or services that are dealt with by a person or a company. Under section 6 of the Act, a sign can be a name, a letter, signature, number, brand, label, word, shape, sound, ticket, heading, among others1. The drawing of Ella fits in the definition of a sign and is capable of being registered under the Act. The drawing can also be registered because Ella is the owner of the drawing and is entitled to apply for its registration. She is also the first person to use the drawing within the jurisdiction. The drawing has also not been used as a trademark by another author or a similar application using the same drawing has not been made earlier2. A trade mark is incapable of being refused for registration under the Trade Marks Act 1995 (Cth) if the applicant does not own the trade mark, the trade mark has a sign that is prescribed, if it can’t be represented graphically, if it is not capable of distinguishing, scandalous or contrary to the law, has a likeliness of causing confusion or deceiving, if it is substantially identical or deceptively similar to a trademark that is registered3. The drawing of Ella does not violate any of the above conditions. In section 27 of the Trade Marks Act 1995 (Cth), the applicant must be owner of the trade mark. Ella is the owner of the drawing that she wants to be registered. Under section 39, the trade mark should not contain a prescribed sign like the national flags, patent, towns, names of cities or public authorities. The drawing of Ella does not have a prescribed sign. Under section 40, the trade mark cannot be registered if it cannot be graphically represented using writing or drawing. The drawing of Ella can be graphically represented and is capable of being registered. Under section 41, the Act demands that a trade mark of goods or services of one person be rejected if it cannot be distinguished from that of the goods or services of another person. In the scenario, the drawing of Ella can be distinguished from that of Jimmy. Ella’s drawing has the lion lying down with its tail on the air while that of Jimmy is sited with its tail dropping down. Even though the colour of the nose of Ella’s drawing is similar to that of Jimmy, the lion has three hashtags surrounding it, different position, and looking in a different direction. Therefore, Ella’s drawing can be distinguished from that of Jimmy and is capable of being registered. Under section 42, a trade mark cannot be registered if it is scandalous or contrary to the law. It is scandalous when is brings shame or disgrace. It is contrary to the law when it violates another law. In the case of Advantage Re-A-Car v Advantage Car Rental P/L [2001] FCA 683, the court held that the trade mark cannot be accepted because ot contravened the Copyright Act 1968 (Cth)4. Therefore, it would bring about copyright infringement of another artistic work. The drawing of Ella does not bring shame or disgrace. Additionally, it is not contrary to any law like defamation section of the ACL and copyright law. Section 43 states that a trade mark should be rejected if it has a connotation that is likely to deceive or even causing confusion. In the case of Scotch Whisky Association v De Witt [2007] FCA 1649, the court held that the application of the trade mark could not be accepted based on its connotation to deceive or cause confusion in relation to bourbon products5. Considering the case of Ella’s drawing, it is very clear drawing with hashtags and has no connotation to deceive or cause confusion. Under section 44, a trade mark can be rejected if it is substantially identical or deceptively similar to a trade mark that is exists. In the case of Shell Co (Aust) Ltd v Esso Standard Oil (Aust) Ltd [1963] HCA 66], the court held that trademarks are substantially identical if they are similar when compared side by side, their essential features give an impression of resemblance6. In the drawing of Ella, the trade mark not similar to that of Jimmy considering the essential features of the drawing, its position, impression and presentation. The drawing is also not deceptive similar to that of Jimmy to allow causing any confusion. It is a totally presented drawing from that of Jimmy. Therefore, the drawing of Ella is acceptable for registration under the Trade Practices Act 1995 (Cth). Jimmy would not have any grounds for opposing the registration under various reasons. The drawing of Jimmy is not currently registered under the Act, therefore, Ella could not be considered as presenting a trade mark that is similar to another that exists. Additionally, Jimmy cannot claim that the drawing of Ella cannot be distinguished from that of his because the two drawings are totally different considering the essential features. They may be using the same animal to represent the trademark but the two drawings are not identical at all. (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) The AJA Journalists code of ethics requires its members to respect the truth and the rights of the public to information. They should commit themselves to honesty, independence, fairness and respect for the rights of others7. As a member of the Media Entertainment and Arts Alliance, Ella has breached the AJA Code of Ethics by not performing according to various standards stipulated in the code. Ella is in violation of section 1 of the AJA code of ethics that requires that journalists should report as well as interpret and disclose all essential facts honestly, accurately and in fairness8. They should not suppress available facts that are relevant or even provide emphasis that is distorting. They should do their utmost to provide fair opportunity for reply. Ella was not accurate, honest and fair to upload the image in providing advertising information of a free pass to the Canberra Zoo and Aquarium with all new 12 month subscriptions that she would not give to the interested subscribers. Her intention was to lure people to subscribe and later after they have paid, tell them that she was not able to give tickets because she had cancelled the deal. She gave a distorting emphasis on her information to the audience. Ella also breached section 4 of the AJA Code of Ethics that requires that journalists not to allow personal interest, any commitment, belief, gift, benefit influence them to undermine their accuracy, independence and fairness. Ella did allow her personal interest to influence her in undermining the accuracy and fairness of the advertising information she posted to the subscribers. She was personally interested in gaining money benefits at the expense of luring subscribers. Ella also breached section 9 of the AJA Code of Ethics that requires journalists to present pictures and sounds that are true and accurate. They should not manipulate them so as to mislead the audience. Ella uploaded the drawing to a prominent position on her blog home page to generate more subscribers. This was an inaccurate way of making people to subscribe to her page by using a picture/drawing that is not true and had manipulated it and uploaded it on a prominent position. (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) Section 18C of the Racial Discrimination Act 1975 (Cth) talks about offensive behaviour as a result of race, colour, national and ethnic origin. It describes that it is illegal for person to an act in public that is reasonably likely to offend, intimidate, humiliate and insult another person in all circumstance9. Additionally, that act is done on the basis of nationality, ethnicity, race and colour of the other person or people in a specific group. Ella has committed an unlawful act under section 18C by posting an article that offends, insults, humiliates, and intimidates white Australian girls. In her blog, Ella wrote “White Australian girls sure do get easily sucked in when it comes to good looks. What ditzy brainless women they are.” This is an offensive, humiliating, intimidating and insulting behaviour that discriminates white Australian girls because of their colour10. However, Ella can use exceptions to claim freedom of speech. In section 18D of the Racial Discrimination Act, there are exemptions that protect people accused of offensive behaviour under section 18C on the basis of freedom of speech11. The section 18D stipulates that in section 18C actions cannot be considered unlawful if at all they were reasonably done in good faith12. This is in relation to the performance, distribution, and exhibition of any work of art or in the presentation of any statement, discussion, publication and debate that is made genuinely for academic, art, and science or any other purpose that is genuine in the public interest. An action is also not illegal under section 18C if in making or publishing it was fair and an accurate report of the event or matter in the public’s interest. Based on Section 18D, Ella can claim that the post of the article in her blog was done in good faith. It was a statement that was genuine for the purpose of public interest. She can also argue that when making the statement, she was accurately reporting a public matter of interest. She was reporting was she had established about Sally and love affairs as a representative of white Australian girls. 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] (4) 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. (5) 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. (6) 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 Australia Code: Australian Journalists' Association Code of Ethics 1994. Australian Human Rights Commission. (2013). At a glance: Racial vilification under sections 18C and 18D of the Racial Discrimination Act 1975 (Cth). Race Discrimination. Burton, L. (2015). Introduction to Trade Marks. Australian IP Law. Media Entertainment & Arts Alliance. (2013). Media Entertainment & Arts Alliance – Journalists' Code of Ethics. Retrieved from http://www.alliance.org.au/code-of-ethics.html Acts Racial Discrimination Act 1975 - SECT 18D. Commonwealth Consolidated Acts Trade Marks Act 1995 (Cth). Commonwealth Consolidated Acts. Cases Advantage Re-A-Car v Advantage Car Rental P/L [2001] FCA 683 Scotch Whisky Association v De Witt [2007] FCA 1649. Shell Co (Aust) Ltd v Esso Standard Oil (Aust) Ltd [1963] HCA 66]. Read More