Atari Inc V Fairstar Electronics Pty Ltd (1982)

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Recommended: Trademark Infringement Law

Mainly based on case-by-case basis, prior to 1995, the court held that the importer was not using the trademark as a trademark and therefore could not be infringing the trademark. For instance, Atari Inc v Fairstar Electronics Pty Ltd (1982) 1 IPR 291; R A & A Bailey & Co Ltd v Boccaccio Pty Ltd (1986) 6 IPR 279; Delphic Wholesalers Pty Ltd v Elco Food Co Pty Ltd (1987) 8 IPR 545.
There was a separation between the owner of the registered Australian trade mark and the company that actually produced the goods, the outcome for the parallel importer was one of only two cases where the parallel importer was found to be infringing or likely to be infringing the registered trade mark.
The difference between the legal identity of a trademark and its physical identity in the approach taken in the Fender Australia Pty Ltd v Bevk case was rejected after the passing off of the 1995 legislation. The question raised therein is whether the Australian trademark owner had physically consented to the application of the Fender trademark by the American company to the guitars sold by the importer. In that sense, whether there is a trademark infringement or not if an importer do not use the trademark on goods. …show more content…

(ii) After Trade Marks Act to current position
This period marks the appearance of Section 123 of Trade Marks Act as a twist for differences in many cases in relation to parallel importing. Section 123 stipulates that a person does not infringe the trademark if the trademark has been applied to the goods by or with the consent of the registered trademark owner.
Taking the case Transport Tyre Sales Pty Ltd v Montana Tyre Rims & Tubes Pty Ltd (1999) 93 FCR 421 (“Montana”) into consideration, the trial Jugde held

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