Intellectual Property - Trademarks and Passing Off
Date: October 10, 2007
Authors: LAC Lawyers
Under the common law, a person who builds up a reputation in connection with the use of a particular mark will have rights to prevent another person "passing off" goods or services as being those of the owner of the mark if such conduct is likely to injure the proprietor's reputation. The proprietor of a common law trade mark may also be able to prevent registration of a similar trade mark by another party.
The most certain way to protect a trade (or service) mark is to register the mark under the Trade Marks Act 1995 (Cth). Registration gives the registered proprietor of the mark the exclusive right to use the mark, and to authorise other persons to use the mark, in relation to the goods or services for which it is registered (subject to another person's continual use of a pre-existing common law mark by which use he or she has built up a reputation). Registration confers Australia-wide protection.
A registered mark may be removed from the register if it has not been used in Australia in good faith by the registered proprietor or an authorised user for a continuous period of three years.
Application for registration of a mark should be made immediately. It is legitimate for a person to "use" an unregistered mark which has been developed by another person (providing that such use does not create deception of the public or constitute "passing off" his or her goods and/or services as those of another) and hence establish prior use or reputation, with the result that the person who has developed the mark may lose the benefits of registration and even the right to use the mark. The registration process may take more than two years but upon registration the applicant's rights run from the date of lodgement of the application.
In Pinetrees Lodge Pty Ltd v Atlas International Pty Ltd (1981) FLR the operator of a guesthouse on Lord Howe Island succeeded in obtaining an interlocutory injunction to restrain a competitor from using an advertising logo similar to the applicant’s logo.
Trade secrets and confidential information
Under the common law, a person to whom information is imparted in circumstances of confidence may not betray that confidence.
In an action for breach of confidence it is necessary for the applicant to establish that the relevant information was in fact confidential, that the information was imparted in circumstances of confidence and that the information was conveyed to another without the owner's consent.
The better approach to protect confidential information is to request all employees and contractors to execute a Confidentiality Agreement to minimise the risk of disclosure of confidential information. Call LAC Lawyers to protect your intellectual property and confidential information today.
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Phone LAC Lawyers on NSW 1300 799 888 or VIC 1300 734 638 or send us an email
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Date: May 04, 2008
Author(s): LAC Lawyers
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Date: August 28, 2009
Author(s): LAC Lawyers
The principle behind the tort of “passing off” is that a person cannot represent their goods or services as those of another. The action for passing off protects business goodwill and reputation from wrongful appropriation.
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Date: May 17, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
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Date: May 20, 2009
Author(s): LAC Lawyers
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Date: August 23, 2010
Author(s): Allan Woodley B.A., LL.B.
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Date: August 23, 2010
Author(s): Allan Woodley B.A., LL.B.
Trade mark opposition proceedings are an essential part of any trade mark protection strategy, to maintain the distinctiveness, integrity and value of your brand, as well as protecting the right to commence or continue trading under your trade mark, by preventing others from registering identical or deceptively similar marks.
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Date: May 17, 2010
Author(s): Michael Pickering B.A., LL.B. (Hons.), LL.M., M. A.
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IP Law - Intellectual Property - Trademarks
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Author(s): LAC Lawyers
The term “Trade Mark” is defined in the Trade Marks Act as “...a sign used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person."
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Date: July 10, 2007
Author(s): LAC Lawyers
Singapore has a dual system of trade mark law. Protection for trade marks may be available both under the Trade Marks Act (Cap 332) ('TMA') and at common law under the common law action of "Passing Off"
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