Ellas Drawing and Legal Ethics - Assignment Example

Name) (Instructors Name) (Course) (Date) Part 1 – Problem Questions Question 1 Ella’s drawing is valid for registration under the Trade Marks Act 1995 (Cth). Evidently, Section 19 (1, 2 &3) of the Trade Marks Act 1995 (Cth) hold that a trade mark can be registered if the symbol or sign sought to be registered aims to distinguish the applicant’s goods, services or both.1 Accordingly, Ella’s drawing qualifies with regards to the above cited law as the trademark to be registered is supposed to represent her blog, ‘My Opinion Is Relevant Hashtag.’ Further, drawing from section 27 (1) of the Trade Marks Act 1995 (Cth), an individual can make an application for the registration of his or her trademarks if the individual proposes to assign the trademark to a company that would soon be constituted.2 Accordingly, Ella intends to use the trade mark on her blog, which would be associated with commercial activities such as booking tickets for customers who intend to tour the zoo. Besides, Ella’s drawing is not substantially identical or even deceptively akin to an already registered trademark as section 23 prohibits.3 It is evident that Animal Enclosure Advertising was still using the old trademark with an old logo thus the new logo was still in the final process of being developed and eventually being registered. Thus, Ella would not have breached any Intellectual Property law had she sought to register her new logo that had been copied and modified, before Jimmy rebranded the company. Importantly also, Ella’s drawing is capable of registration as the nature of the logo does not fall between section 39 and 44 of the Trade Marks Act 1995 (Cth).4 These sections underline the circumstances under which an application can be rejected. For instance, Ella’s drawing, which is to be used as trademark has the capacity to distinguish the services that she is offering, which is associated with freelance journalism, from those of other traders. Moreover, the prospect trademark is not contrary to the law or scandalous. Jimmy does not have any grounds for opposing the registration because of various reasons with regards to the Trade Marks Act 1995 (cth). First, in reference to section 58A of the Trade Marks Act 1995(Cth), an individual can oppose the registration of a trademark if the trademark being presented for registration is the same as the one the opponent used earlier.5 In other words, the registration can be opposed if the trademark is similar with the opponent’s one.6 In effect, whereas Jimmy’s logo that was found in the sketches was set to be used in the rebranding of the company, it had not been used before, and has not been registered at the moment. In conclusion, with regards to the acceptance of the registration of a trade mark as well as the grounds under which one can oppose the registration, the Registrar of Trade Marks v Woolworths Case7 gives a good analogy. In this case, the registrar of Trade Marks had refused Woolworths Limited application of trademark on the pretext that the mark was deceptively similar to another registered as well as unregistered popular trademarks. However, after both the plaintiff and defendant’s submissions, the judge found in his wisdom that the prospect mark was valid as other trademarks claimed to resemble it, dealt with other services and goods. Thus Woolworths was granted the opportunity for its mark to be registered. Further, the judge asserted that only cases with clear deceptive similarity and which may later lead to later adversarial processes can be rejected by the Register. Question 2 Looking at the facts of the case, Ella has breached various sections of the AJA Code of Ethics. To begin with, Ella has breached section one of the Code, which is associated with Honesty.8 In essence, the Code holds that a journalist should always report as well as interpret honesty. In effect, with regard to the case study, it is evident that Ella chose to withhold the full information regarding the relationship between Sally and Jimmy as well as the love relationship status between Dr Neville love relationship and Sally. The Code of ethics holds that a journalist should not suppress the available facts, and moreover he or she should give a fair opportunity for a reply.9 Accordingly, Ella did not bother to inquire what Jimmy had to say about the allegations in the story that was to be posted to the public. The second section that Ella breached is associated with respect for other’s rights. According to the Code to AJA Code of Ethics, a journalist should not place superfluous emphasis on personal features such race, sex orientation, nationality, religious believes, ethnicity, intellectual disability and even gender.10 Evidently, Ella has breached the above Code as in her post she went ahead and emphasized that it has become a norm for white Australian girls to fall for handsome men. Ella has also breach the Code that seeks to restrict journalist from getting into people’s private life. The Code maintains that journalist should at all times respect personal privacy.11 Ella is also in breach of Code number eight, which states that a journalist should never obtain source materials illegally, that is they should obtain material in a responsible and honest means.12 Contrastingly, Ella decided to obtain the material that she used in her blog through fraudulent means: she stole the documents from Jimmy’s car while he was in his house. To conclude, Grosse v. Purvis case is a good analogy that can be associated with breaching basic journalistic code of ethics.13 In this case, Alison Grosse, a former Sunshine Coast mayor, sued his ex-girlfriend Purvis, for defamation as well as invasion of privacy. It was alleged that despite the fact the affair between Gross and Purvis had ended, Purvis who is also a journalist decided to use her influence in the media to adversely defame Grosse. She decided to post false information regarding Grosse love affairs in the internet because of jealousy. Consequently, the Queensland District Court judge found Purvis guilty of privacy invasion and defamation.14   Question 3 Subject to section 18C of the Racial Discrimination Act 1975(Cth) Ella has committed an unlawful act since she intentionally discriminated against the Australian white women, as she was livid about Jimmy and Sally love affair. To further prove that Ella intentions was based on bad faith, the post she posted depicted insult on the said white women as she referred to them as ditzy and brainless. According to section 18C of the Racial Discrimination Act 1975(Cth), it is illegal to be engaged in an act that is likely to directly or indirectly humiliate, intimidate, insult an individual or even a group of people based on race, colour, ethnic or national origin.15 Consequently, Ella is subject to prosecution as her utterance, which was posted on her blog was targeted indirectly towards Sally and directly to the white women in Australia. The racial discrimination act (RDA) was created with the intention of ensuring that everyone irrespective of colour, race, religion and other form of background orientation, is treated equally. Since the Acts inception in 1975, more than 10,500 complaints have been filed in the courts.16 As Gaze notes, much of these cases were from the Torres Strait Islander as well as Aboriginal individuals and approximately five thousand cases were from the non-English speaking background.17 Thus, the RDA covers all parts of Australia. Additionally, anti-discrimination legislation is found in all states as well as territories except Tasmania.18 In conjunction with the RDA, a law associated with offensive behaviour that is founded on racial hatred was also included in the RDA on 13th October, 1995.19 The exemptions in section 18D of the Racial Discrimination Act 1975(Cth) cannot apply on Ella’s case because of various reasons. First, Ella’s intentions were not in good faith, as the ensuing statement after the racial discrimination assertion was vulgar and intended to insult the white Australian women. Section 18D of the Racial Discrimination Act 1975(Cth) only exempt acts that were done in good faith and that were never meant to insult an individual or a group of people.20 The act further protects or exempts only genuine academic or even scientific publications that are pursued for the public’s interest. A Good analogy that can be associated with Ella’s case is the Eatock v Bolt and the Terald & Weekly Times Pty ltd case.21 The case involved a suit against Herald Sun, a renowned newspaper, filed by Pat Eatock in conjunction with nine other individuals.22 The complainants accused Andrew Bold, Herald Sun Columnist, of publishing a post with the title “It’s so hip to be black.” The complainants alleged that the article posted on Bolt’s blog promoted racial discrimination, which was contrary to Racial Discrimination Act 1975(Cth). They sought a ga o republish the said article as well as blogs, apology and legal costs. After profound litigation and court proceedings, the court found the accused guilty of contravening section 18C of the Racial Discrimination Act 1975(Cth). Part 2 - Multiple choice questions 4. c 5. a 6.b References Alliance.org.au, Media Entertainment & Arts Alliance - Journalists' Code Of Ethics (2015) . AO, R. O. (2014). Submission to the Commonwealth Attorney-General on the Proposed Amendments to the Racial Discrimination Act 1975 (Cth) (Doctoral dissertation, University of Adelaide). Austlii.edu.au, RACIAL DISCRIMINATION ACT 1975 - SECT 18Dexemptions (2015) Austlii.edu.au, TRADE MARKS ACT 1995 - SECT 19Certain Trade Marks May Be Registered (2015) . Austlii.edu.au, TRADE MARKS ACT 1995 - SECT 23Limitation On Rights If Similar Trade Marks Etc. Registered By Different Persons (2015) . Austlii.edu.au, TRADE MARKS ACT 1995 - SECT 27Application--How Made (2015) . Austlii.edu.au, TRADE MARKS ACT 1995 - SECT 42Trade Mark Scandalous Or Its Use Contrary To Law (2015) . Austlii.edu.au, TRADE MARKS ACT 1995 - SECT 58Aopponent's Earlier Use Of Similar Trade Mark (2015). Business.gov.au, Trade Marks - Register A Trade Mark | Business.Gov.Au (2015) . Case against bolt to test racial identity, free-speech limits (Unreported, Kissane Karen, 30 September 2010) Comlaw.gov.au, Racial Discrimination Act 1975 (2015) Dal Pont, G. "Legal Practitioners (2012)." Halsbury's Laws of Australia 16, no. Title 250 (2012): 1-466. Eatock v Bolt (No 2) [2011] FCA 1180 (19 October 2011) Gaze, Beth. "Has the Racial Discrimination Act Contributed to Eliminating Racial Discrimination? Analyzing the Litigation Track Record 2000-04." Australian Journal of Human Rights 11, no. 1 (2010): 171-201. Grosse v Purvis [2003] QDC 151 (16 June 2003) Himelboim, Itai, and Yehiel Limor. "Media institutions, news organizations, and the journalistic social role worldwide: A cross-national and cross-organizational study of codes of ethics." Mass Communication and Society 14, no. 1 (2010): 71-92. Hughes, Roger T. Copyright Legislation and Commentary. (LexisNexis Butterworths, 2009). Registrar of Trade Marks v Woolworths [1999] FCA 1020 (29 July 1999) Ricketson, S., Richardson, M., & Davison, M. (2012). Intellectual property: cases, materials and commentary. LexisNexis Butterworths. Spencer, Rachel. "Legal Ethics and the Media: Are the Ethics of Lawyers and Journalists Irretrievably at Odds?." Legal Ethics 15, no. 1 (2012): 83-110. Read More