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JU697M : Advanced Intellectual Property Law

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JU697M : Advanced Intellectual Property Law

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Course Code: JU697M
University: Stockholm University

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Country: Sweden


1. Part A
Jack has invented a new product, a do-it-yourself Champagne kit. He has called his new product ‘BubbleUp’. Eager to start selling, but knowing how important protecting his brand is, Jack starts the process of registering ‘BubbleUp’ as a trademark. He has also decided to register his new slogan, ‘Let’s get popping’.
During the registration process, Jack finds out that there are two objections to his proposed trademarks.
The first objections comes from Penny, who is a soft drink manufacturer. Penny’s product is a non-alcoholic beverage in a variety of flavours. Her product is called ‘BubbleCup’. Penny is claiming that Jack’s new product name is too similar to her product’s name.
The second objection is from Betty, who is a cordial manufacturer. Betty produces pop-corn flavoured cordial. Betty has been in business for six years and has called her product ‘Let’s Get Popping’. Betty is a small boutique cordial manufacturer. She has always considered her product to be extremely unique and has never considered the need to register the name of her product.
Jack is extremely concerned about these objections and would like to know what his chances of success are in having his product name and slogan registered. Advise Jack. In your answer, please refer to relevant case law and legislation. 
Part B
Jack has his first shipment of BubbleUp ready to go! Jack did not anticipate any issues and entered contracts for the delivery of BubbleUp. Jack decides to box up and ship out the orders.
About two weeks later, Jack is notified that Champagne manufacturers in France may be intending to bring a claim against him for the use of the word ‘Champagne’ on the label on his kits. The Champagne manufacturers claim that the kit contains reconstituted grape powder from Australian grapes and not Champagne region grapes. 
Jack would like you advise on whether this is an issue. Advise Jack. In your answer, please refer to relevant case law and legislation.
2. Part A
Australia is a signatory to several international conventions that affect national intellectual property laws, such as the TRIPS Agreement. Discuss the benefits of an international regime for regulating intellectual property rights.
Part B
Can an international regime for regulating intellectual property rights be implemented effectively at the national level in all countries? What particular issues arise in the implementation of the international regime at the national level in developing countries in particular?


1. Part A
The issue in this present scenario is to determine whether Jack has any chances of success in registering his product name and slogan.
Relevant laws
A product name or slogan for a business can be registered in Australia as trade mark. Trade mark protection is followed by registration by paying a fee. It is used to provide protection against another people from using the substantially identical or deceivable similar mark during the course of the business. It is registered with IP Australia. Section 7 of the Trade Mark Act 1995 provides that the use of a trademark in relation to a product means the use of a trade mark upon the product or in relation to the product. Registration of trade mark empowers the owner to exclusively use or control the use of the product for which it was registered. To determine the name of a product, the product name can be registered. Registration of product name gives power to the owner of the trademark to protect and control the use of the marketing strategies relating to the product image name and the product itself. It is to be verified before applying for registration of trademarks that the product name and slogan are identifiable, unique and already registered.
A product name should clearly identify a product from the other competitors in the marketplace, by distinguishing the unique attribute of the product. It implies the advantage of the brand over the competitors. A registered trademark is eligible for legal protection. It also motivates the consumers to purchase that particular product. A formal registration of a product name with the IP Australia, helps the owner of the trade mark to be entitled to the right use their product name exclusively within their country.
Businesses can use a combination of words for their slogan and have it registered. Slogans can be used to distinguish the goods and services of the owner. According to Section 41 of the Trade Mark Act 1995, an application can be rejected for trade mark, if it is not capable to distinguish the goods or services of the applicant for which the trade mark is sought to be registered from the other goods or products in the market. In a recent judgement the Federal Court enumerated the importance of trademark registration for the protection of their use of slogans or phrases as a marketing tools. It was decided in this case that the trademark protection should be used to provide exclusive rights to use the combination of words in connection to the products traded under the words.
However, trademarks cannot be registered when it contravenes the provisions of Trade Mark Act. Section 41 of the Act provides that a trade mark shall not be registered if the trademark was not fit for distinguishing the goods and services for which the trademark was sought to be registered. As per Section 43 of the Act, trade mark shall not be registered if it is likely to create a confusion for other products or goods. Further Section 44 states that, a trademark shall not be registered or be rejected if the trade mark is deceptively similar to a trade mark which has already been registered by another person. In the case of Dunlop Aircraft Tyres Limited v The Good Year Tire & Rubber Company [2018] FCA 1014 it was considered that the trade mark application could be rejected as per section 44 of the Act.
In this present context, there was a similarity between the product name of John and the product name of Penny, which was likely to confuse or deceive the purchaser. There may occur an impression in the mind about the both products, which are deceptive or confusing. Additionally, it would infringe the right of the user who has registered his or product name or slogan. Herein, Jack’s application for registration of trademark for his product in the name as BubbleUp may face objection or rejection, as it may confuse the product with BubbleCup. Both the products are of a similar nature, which may lead a purchaser to believe that they are the same.
However, if a product name or slogan or design is not registered as a trade mark, it cannot claim the protection of restricting its use. Therefore, Betty cannot claim any protection as to the product name for her product. The product name she had used was not registered which disables her to make a claim that Jack should refrain from using the name as a slogan for his product. No objection can be made from Betty’s end to restrict the use of her product name by any other user.
It can be decided from the above discussion that, Jack may not succeed in registering his product name but he can register his slogan for the products.
Part B
This issue revolves around the relevant provisions of Trade Mark act 1995. Section 15 of this Act regulates the definition of originated in relation to beverages made from grapes. It says that only a beverage made from grapes that are grown within the territory of Australia or of that country. A wine shall be considered to be originated in a particular locality or region of a foreign country or that of Australia if the beverage were made from grapes which grew in that locality or region. If the product label makes a false claim it cannot register its name with trademark. Trademark is issued to give protection to the unfair competition between companies or products. It helps the customer to distinguish between two products and it also helps to protect the reputation and investment of the trade mark owner. A registration for trademark can be opposed in support of the same ground as for a rejection of registration of trademark. If a trademark does not justifiably and sufficiently distinguishes the product so as to remove the confusion or deceive the product. If some connotation of the trade mark has the use of the trade mark with regard to the product would deceive or cause a confusion, such trade mark should not be registered, as stated in Section 43 of the Act. Additionally, Section 44 of the Act clarifies that a trade mark containing any identical or deceptive similarity with another goods, should be rejected. In the case of Accor Australia & New Zealand Hospitality Pty Ltd V Liv Pty Ltd [2017] FCAFC 56 the deceptive similarity between two products were identified and the court decided that the similarity should be enough to remove the distinctiveness of the product with other product. In Colorado Group Ltd v Strandbags Group Pty Ltd [2007] FCAFC 184; (2007) 164 FCR 506, Allsop J had identified that the purpose of this Act is to identify a product by its trade mark. In Re Hick’s Trade Mark; Ex parte Metters Bros [1897] VicLawRp 118; (1897) 22 VLR 636 it was observed that the registration of trade mark provides a right to the owner in relation to his products to make it distinguished from other similar product for the purpose it was registered. In Shell v Esso, it was demonstrated that a trade mark to have deceptive similarity, the trade mark should be compared with the similar trade mark and considered on the total impression of similarity which emerges from the comparison.
Competition and Consumer Act 2010 requires that a product labelling to contain the correct information to the consumers and it should not make any false, misleading or deceptive information to the consumers.
For a trade mark to be used for a product, it is required that the word used in the product are true to its meaning and not deceptive. Jack used the word ‘Champagne’ on the label of his do-it yourself kit. It shall create an impression over the purchaser that the product is contained grapes from Champagne region. The claim of the Champagne Manufacturer would be justified in this case. If the product is using the word Champagne and registering the name of the product, it would mean what it means by the use of such word. It should not be deceptive or create a confusion in the mind of the purchaser. The kit which Jack was selling, contained reconstituted grape powder from Australian grapes. For the purpose of the Trade mark Act, Jack should have mentioned it in the label of his product that it contained Australian grapes powder and not Champagne region grapes. It makes his product claims distinctively similar to that of the products of the Champagne manufacturers in France. The claim in the product of Jack is not justified and resembles the other use of that mark, which is likely to deceive or create confusion. Trade mark shows the badge of the origin in this case and is used to indicate that the product is originated from such an origin as can be observed from the statement on the label. No product should contain a deceptive or false claim in their labelling, as per the Competition and Consumer Act 2010. Ms Dahlke commented on the decision as given in the John Fitton & Co Ltd’s Appn (1949) 66 RPC 110 that the term like to deceive or cause confusion does not limit the nature of deception or confusion.
Hence, in this case, Jack did not provide correct information as to the claim in his label and cannot claim protection of trade mark for his product.
2. Part A
An international agreement helps the enforcement of Intellectual Property rights over the other jurisdictions. The owner gets the rights of importation of goods from other jurisdiction which is an important part of his ownership. The enforcement or effectiveness of the trademarks, copyrights and patents in the other jurisdiction relies on the international agreement as domestic law does not have any extraterritorial effect.
Australia has entered into bilateral and plurilateral agreements that includes intellectual property rights. As a member to the World Trade Organisation, Australia has entered into the Agreement of Trade-Related Aspects of Intellectual Property Rights, which has set out some general principles, and also contains minimum standards for intellectual property rights and deals with the enforcement procedures of those rights. Most of the intellectual property treaties have been developed through the World Intellectual Property Organisation. WIPO administers many multilateral treaties most of which Australia is a signatory. The treaties to which Australia is a party can be divided in four categories, namely as: Global Protection System, IP Protection agreements, Administrative Treaties and Classification Treaties.
Global protection systems: The Patent Cooperation Treaty and the Madrid Protocol for International Trade Marks has provided with some routes to file for IP protection in numerous countries.
IP Protection Agreements: Paris Convention is one of such agreement which provides basic legal standards for the IP protection and has been incorporated in the TRIPS Agreement.
Administrative Treaties: the Singapore Treaty on the Law of Trademarks and the Patent Law Treaty streamlines and simplifies the process to obtain rights internationally with the help of limits on administrative requirements.
Classification Treaties: Strasbourg Agreement is concerned with the international classification of patents to organise IP information into a manageable structure.  Nice Agreement is designed in relation to international classification of goods and services for trade mark.
Apart from these, Australia is also a party to the International Union for the Protection of New Varieties of Plants to provide an effective system of plant variety protection internationally. As a benefit for being a party to these international agreements, the IP rights of the owners are receives a standardized protection across different jurisdictions and it also helps in identifying new matters which requires protection. International agreements facilitates to obtain IP rights at various level to promote cost and time effectiveness. As an example, the Madrid Agreement allow to registration of trademarks at an international level. It also protects the rights of the owner where the domestic laws fails to provide it effects.
Part B
International regime for regulating intellectual property rights at the national level in all countries
There is a significant need to implement an international regime to regulate intellectual property rights at the national level in the countries. The advantages that the international intellectual property regime regulating the intellectual property rights offers to the countries are of substance and it has also helped in developing the framework of protection of the owners. The international conventions and agreements offers the owner from a member state the equal treatment in the other states. An effective implementation of this tradition is needed in every country as to protect the interests of trade mark or copy right owner in an international aspect. International intellectual property rights has an impact over all the facets of human progress. The effective implementation of intellectual property rights as an international regime could make its role better in social, economic, cultural and technological development at the national level.
Issues in implementing international regime regulating intellectual property rights at national level
Extraterritorial protection of IP rights at national level is not always advantageous for the countries. There may occur a situation that creates a conflict between that international regime and domestic laws of the country. Laws and rights to individual varies to one country from another, there can never be a universally accepted rights over a thing. Harmonisation in the standard of right may not prove to be effective in every case. The process of providing protection may get complicated in certain situation. Countries may face a dispute in treating the nationals of a country equally with foreigners. The need and method of IP protection may also vary from country to country, the main purpose should be to benefit the producers in a proper way as well as the society and economy at large. The system of international regime for intellectual property rights at national level is comprised of overlapping and parallel treaties which are populated by shifting of issues and state and non-state actors.
Accor Australia & New Zealand Hospitality Pty Ltd V Liv Pty Ltd [2017] FCAFC 56
Colorado Group Ltd v Strandbags Group Pty Ltd [2007] FCAFC 184; (2007) 164 FCR 506
Dunlop Aircraft Tyres Limited v The Good Year Tire & Rubber Company [2018] FCA 1014
Ex parte Matters Bros [1897] VicLawRp 118; (1897) 22 VLR 636
John Fitton & Co Ltd’s Appn (1949) 66 RPC 110
Competition and Consumer Act 2010
Trademark Act 1995
(2018) Ipaustralia.gov.au https://www.ipaustralia.gov.au/trade-marks
Dür, Andreas, Leonardo Baccini, and Manfred Elsig. “The design of international trade agreements: Introducing a new dataset.” The Review of International Organizations 9.3 (2014): 353-375.
Malbon, Justin, Charles Lawson, and Mark Davison. The wto Agreement on Trade-Related Aspects of Intellectual Property Rights: A commentary. Edward Elgar Publishing, 2014.

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