AUSTRALIA
the course of trade by the trademark owner from goods or services dealt with or provided by others.
THE MORE IMPORTANT CONSEQUENCE OF THE LEGISLATION APPEARS TO BE IN THE LOSS OF THE ABILITY TO USE CERTAIN SIGNS.
with or provided in the course of trade by a person from goods or services dealt with or provided by any other person.”
Under Section 20, a registered trademark provides the registered owner with: “... the exclusive rights:
(a) to use the trade mark; and (b) to authorise other persons to use the trade mark; in relation to the goods and/or services in respect of which the trade
mark is registered”.
It would seem that a consequence of the decision to allow trademark owners to retain their registrations is that they maintain their exclusive rights. As the ability to use certain signs is restricted, the value of having exclusivity in signs that can no longer be used on retail packaging is questionable. However, the more important consequence of the legislation appears to be in the loss of the ability to use certain signs. Tis leads to an inability to distinguish the goods or services dealt with or provided in
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This loss extends well beyond the bounds of the Trade Marks Act 1995 itself. It appears to result in tobacco product owners being at a distinct disadvantage in preventing competitors from supplying goods or services that may no longer be distinguishable from the goods or services of the owner that were previously distinguished by the use of the sign in question.
Naturally, the argument extends to making it easier for low quality or counterfeit products to be produced and sold alongside well known brands, as the armoury of the legitimate tobacco product owner is reduced since it can no longer rely on graphical signs to distinguish its products from others. It is accepted under trademark law that a graphical sign is used by a consumer to overcome an imperfect memory and identify a product that he or she would usually buy. It is also acknowledged that such signs add to the complexity of producing a counterfeit product, as well as making it easier for the trademark owner to spot poor quality imitations of complex signs.
The value of the trademark itself
One positive message emerging from the debate is recognition of the value that is attached to the use of a trademark per se. Aside from any consideration of how a particular product is advertised or marketed, there is strong evidence being cited that a trademark that appears on a product can induce a consumer to buy that product when the consumer may not have had any intention of doing so in the first place. The non-government Cancer Council of Australia’s findings, which were researched over two decades and across five countries, concluded that, among other things, “the tobacco industry uses cigarette pack technologies and innovations in design to communicate particular attributes about each brand and by extension the personality and social status of its users”, as a means of
World Intellectual Property Review e-Digest 2012 41
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