Law of Communication (UG) Trademark Essay Example

TRADEMARK 10

Law of Communication (UG) Trademark

Questions:

Part 1 – Problem questions

(1) Is Ella’s drawing capable of registration under the Trade Marks Act 1995 (Cth)?

In the first scenario, the central legal issue is whether Ella’s drawing can be registered under the Trade Marks Act 1995 (Cth). Two issues will have to be examined: whether the trademark distinguishes, Ella’s the designated goods or services, and whether the trademark graphically represents Ella’s services and goods.

According to section 41(1) of the Trade Marks Act 1995, a trademark intended for registration can be rejected when it fails to distinguish the designated goods or services offered by the applicant from those of the other companies.

From a scrutiny of Ella’s drawing, it is clear that it does not represent the services she is offering. Since the Canberra Zoo and Aquarium do not belong to her, it cannot be argued that the logo represents the services she offers.

Again, Ella intends to lure readers with the drawing by hinting to a possible entry or free pass to the Canberra Zoo and Aquarium. The fact that she is, in fact, lying to attract readers implies that the drawing does not actually represent any services she intends to offer. Hence, the drawing does not meet the requirements of section 41(1) of the Trade Marks Act 1995.

Failure to meet this requirement draws attention to
section 41(3)(a), which requires that the trademark application is liable for rejection when it does not distinguish the services of the applicant from the others.

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.

Basing on physical description, the logo is made up of a graphic that shows cartoon lion facing to the right while seated with its tail lying on the ground while smiling. These features do not represent Ella’s services in any way, except for the possibilities of winning entry into the Canberra Zoo and Aquarium.

At any rate, it is indicated by evidence in the case study that Ella got inspired to use the logo, as it looked cute. It was not inspired by any services she intended to offer. If these pieces of evidence should be taken into consideration, then it is clear that Ella’s drawing cannot be registered under the Trade Marks Act 1995 (Cth).

Would Jimmy have any grounds for opposing the registration?

To establish whether Jimmy has any grounds, the key legal issues for review include whether the trademark is represented graphically, whether Jimmy is the real owner of the trademark and whether Ella seeks to register the trademark in bad faith. An underlying argument is that Jimmy has grounds for opposing the registration of the trademark.

Section 57 of theTrade Marks Act 1995 required that registration of a trademark is not admissible when it fails to fulfil the requirements stipulated by Trade Marks Act 1995 with the exception of where the trademark cannot be represented graphically by the applicant. However, since Ella can represent the trademark graphically, then it is argued that the trademark is subject to rejection under the Trade Marks Act 1995. Hence, the legislation applies to the case.

Concerning the second requirement, the Trade Marks Act 1995 specifies that one would have grounds to stop the registration of the trademark when the applicant is not the actual owner of the trademark. Evidence from the case study indicates that Jimmy is the actual owner of the copyright, as the trademark was in his possession before Ella stole it from his car. Additionally, the trademark graphically represents the Animal Enclosure Advertising, which is a new business venture Jimmy is pursuing. This brings sufficient evidence to show that Jimmy has sufficient grounds to claim that the trademark belongs to his firm. On the other hand, Ella would be taken to task to show what part of her business or products the trademark represents1.

In the third argument, Jimmy can stop the registration of the logo on grounds that Ella seeks to register it in bad faith and that it is an infringement of the trademark. Despite the fact that Ella altered the trademark such that the logo faces to the right, and the three hashtags surround the lion, it is still similar to Jimmy’s trademark. Indeed, signs of trademark infringement include using a sign to be a trademark. Again, the sign has to be significantly identical with or misleadingly comparable to an already registered trademark. Again, the sign should be used relative to goods or services that are similar or closely associated with the goods or services the registered trademark covers2. Hence, Jimmy may still make a claim for trademark infringement, by arguing that the lion in Ella’s trademark can be confused with his company’s logo. Hence, Jimmy can file a complaint to invalidate the registration of the trademark on grounds that as it has been registered in bad faith, despite Ella having sufficient knowledge that it belonged to Jimmy.

Overall, Jimmy has sufficient grounds to stop the registration on ground that Ella is not the real owner of the trademark and that Ella seeks to register the trademark in bad faith

(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.

Ella’s conduct is in breach of three key codes of the AJA Code of Ethics.

The second section of the AJA Code of Ethics requires that journalists should not place unnecessary stress on personal features like ethnicity, race, nationality, age, gender, family relationships, religious belief, sexual orientation, or intellectual and physical disability3. However, facts from the case indicate that Ella was in breach of this code. For instance, she mentioned in her piece that “White Australian girls sure easily sucked in when it comes to good looks. What ditzy brainless women they are.” From that statement, Ella unnecessarily placed emphasis on race (White women), nationality (Australians), gender (women), sexual orientation, and intellectual and physical disability (brainless) while reporting on the alleged relationship [between Jimmy and Sally].

The fourth section of the AJA Code of Ethics requires a journalist to refrain from allowing personal interests to come in the way of their professional duties4. Evidence from the case study, however, shows that Ella allowed her personal interests to sway her and inspire her to make a malicious report about Jimmy and Sally’s alleged “scandalous affair.” Before seeing them together, Ella was on the verge of changing careers. When she saw the two together, she believed that the new story would motivate her to keep her options open.

The seventh part of the Code of Ethics also requires that journalists should strictly use fair and honest methods to obtain information, for news reports. Journalists should also not refrain from exploiting an individual’s vulnerability or ignorance while seeking to acquire information. In the case study, however, Ella’s conduct in stealing the documents to frame her story about Sally and Jimmy were unfair, as she stole the documents after making unwarranted entry into Jimmy’s car. In reality, this was both dishonest and unfair.

(3) Has Ella committed an unlawful act under section 18C of the Racial Discrimination Act 1975 (Cth)?

The legal issue of interest is whether Ella is in breach of section 18C of the Racial Discrimination Act 1975 (Cth). It is argued that Ellas is in breach. Indeed, section 18C (1)(a) of the Racial Discrimination Act 1975 (Cth) stipulates that an individual would be in breach of the Act when the individual conducts himself in a manner that is not private where he or she insults another, or offends, humiliates or intimidates him or her.

As shown in the case study, Ella’s statement “…It looks like Sally has become another conquest for the handsome heart-throb. White Australian girls sure do get easily sucked in when it comes to good looks. What ditzy brainless women they are…” have elements of insults, intimidation, and offensive words to Sally, as well as the White Australian girls.

For these reasons, Ella is in breach of section 18C (1)(a) of the Racial Discrimination Act 1975 (Cth).

According to section 18C (1)(a) of the Act, an individual would be in breach of the Act when he makes an offensive statement regarding race, colour, ethnic, as well as the nationality of the subject of discourse.

In your answer, discuss whether any exemptions in section 18D apply.

The answer is positive, as it is established that Ella is in breach of section 18C of the Racial Discrimination Act 1975 (Cth). The next legal issue is establishing whether any exemptions in section 18D apply. Indeed, there are exemptions. Section 18D(c)(ii) of the Racial Discrimination Act 1975 suggests an exemption, as it provides that Section 18C cannot cause the act to be unlawful. This is for cases where the conduct is rationally stated or in good faith or when published as a fair comment, particularly when the issue is of utmost public interest. The fair comment should also express a genuine belief the defendant holds5.

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)

  1. Ella will only be considered to be engaged ‘in trade or commence’ if she is carrying on a business or commercial activity for profit.

  2. A reference to engaging in conduct includes a reference to Ella doing or refusing to do any act.

  3. A subjective test must be applied, so it will be necessary to prove that at least one person was misled by Ella’s conduct.

  4. Section 18(1) only applies to natural persons such as Ella, not corporations.

  1. 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)

  1. Ella could not commence defamation proceedings against the Senator for defamatory statements made about her in the Senate.

  2. Ella could commence defamation proceedings against the Senator for defamatory statements the Senator repeated verbatim in the front courtyard of Parliament House.

  3. 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.

  4. 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.

  1. Which of the following statements is true in relation to Ella’s copyright in her article ‘The Next Bond Girl’? (1 mark)

  1. Ella will need to register the copyright through IP Australia in order to obtain copyright protection.

  2. 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.

  3. Copyright will subsist in Ella’s article for 70 years from the date of publication.

  4. Ella is able to sell, transfer or assign her copyright in the article.

References

Janke, T. (2003). Minding Culture: Case Studies on Intellectual Property and Traditional Cultural Expressions. WIPO

Mackie, J. & Keeffe, D. (2009). A Reference Guide To The Australian Trade Mark System. Retrieved: <http://www.ipo.org/wp-content/uploads/2013/04/AGuidetoAustralianTrademarks.pdf>

Martin, J. (2013). Changes to Offences and Penalties under the Trade Marks Act 1995. FB Rice. Retrieved: <http://www.fbrice.com.au/publication/Changes_to_Offences_and_Penalties_under_the_Trade_Marks_Act_1995.aspx>

Media Entertainment & Arts Alliance (2013). Media Entertainment & Arts Alliance — Journalists’ Code of Ethics. Retrieved from: <http://www.alliance.org.au/code-of-ethics.html>

1 Janke, T. (2003). Minding Culture: Case Studies on Intellectual Property and Traditional Cultural Expressions. WIPO

2 Martin, J. (2013). Changes to Offences and Penalties under the Trade Marks Act 1995. FB Rice. Retrieved: <http://www.fbrice.com.au/publication/Changes_to_Offences_and_Penalties_under_the_Trade_Marks_Act_1995.aspx>

3 Media Entertainment & Arts Alliance (2013). Media Entertainment & Arts Alliance — Journalists’ Code of Ethics. Retrieved from: <http://www.alliance.org.au/code-of-ethics.html>

5 Mackie, J. & Keeffe, D. (2009). A Reference Guide To The Australian Trade Mark System. Retrieved: <http://www.ipo.org/wp-content/uploads/2013/04/AGuidetoAustralianTrademarks.pdf>