The aim of this essay is to critically discuss how the law of passing off and trade mark law have common roots and therefore are, in many respects, similar. I will begin with a short brief history of trade mark law and the law of passing off. I move on to discuss the similarity between trade mark law and the law of passing off with reference to relevant case law and statutes. Although, passing off and trade mark law deal with overlapping factual situations, s 2(2) of the Trade Mark Act 1994 maintains passing off as a separate cause of action. When a trade mark is threatened by the actions of third parties the proprietor will bring an action for both passing off and trade mark infringement which both share many similarities. However, they are …show more content…
In the absence of registered trade mark rights, case law suggests as a general principle, that mere similarity of goods is not enough for an actionable wrong to occur. Passing off derives from the common law action deceit which is the civil action for fraudulent misrepresentation. Passing off is a non-statutory cause of action that has developed over the years through case law and has changed considerably overtime. Passing off came into existence long before trademarks became registerable and has always been available at common law for marks refused registration, not registered or ineligible for …show more content…
Passing off is not confined to that resulting from the use of registered trade marks. While the TMA 1994 protects trade marks as property immediately upon registration, the law of passing off is said to protect as property the trade goodwill that develops in the market place. Although, passing off does not confer monopoly rights, passing off and trade mark law deal with overlapping factual situations, although, s 2(2) of the TMA 1994 s 2(2) maintains passing off as a separate cause of action. Passing off seeks to protect not the claimant’s sign as such but the claimant’s customer connection or "goodwill" built up around that sign or the claimant’s business. According to Alice Blythe, “Passing off seeks to protect business goodwill, which is the trading reputation of the economic undertaking proclaimed by the sign. The business goodwill proclaimed by the sign will be perceived by consumers in a very similar way to which Laddie J described for trademarks.” This a strong similarity to trade mark
This essay will examine key aspects of the recent implementation of the Australian Consumer Law (ACL) 2011, which is the largest overhaul in Consumer Law in Australia in the past twenty five years. The ACL replaces 20 existing State and Territory laws into one national law , the legislation was enacted in two main parts as Schedule 2 of the renamed Trade Practices Act 1974 (Cth) (TPA) - Competition and Consumer Act 2010 (Cth) (CCA) . Aforementioned this essay it will outline the key benefits of the implementation of the act. Furthermore it will critique the Act, whilst exploring the objectives of the legislation.
Legal Studies Essay Joey Agerholm Exclusion clauses determine the liability of something that might go wrong within a contract. They are used by sellers as an attempt to avoid or limit their liability. The seller has the advantage over the buyer who must agree to the clauses to purchase the product/service. Because of the buyers disadvantage the court takes such cases, involving exclusion clauses, very seriously, and the content of the clauses are carefully interpreted. With the current Trade Practises Act and the Fair Trading Act the standard form of business contract is adequate and effective in protecting the buyer. The Trade Practise Act is the most effective legislation for the protection of the consumer. It implies to the following situations:- - “A promise by the seller that the buyer will become the owner” If a car dealer breaks a promise or part of a contract, for example that he has the right to sell a car, and the car is stolen then although the buyer will have to give the car back he/she will get her money back. - “ A promise by the seller that goods will fit the description supplied by the seller” In this case the buyer is protected if the seller makes a promise, which is a condition of the contract, describing the product, and when the buyer receives the product, it does not match the description. - “ A promise where the seller is made aware of the purpose for which the goods are required, that the goods will be reasonably fit for that purpose” This condition is implied when the buyer makes the purpose of the goods needed known to the seller, and the buyer then relies on the seller’s judgement in providing the correct product. For example it would not be reasonable if you made the seller aware that you wished to purchase something suitable for mowing the average suburban backyard and you were sold a tractor. - “A Promise that goods are of merchantable quality” According to this act a good is considered to be merchantable if they are suitable for the prospect for which other similar goods are sold, involving the description applied to them, the price and any other relevant information. This act does however does not protect the consumer if he/she has examined the product and missed any defects that should have been seen or if the seller made him/her aware of the defect prior to the purchase of the product.
Barnes, D. W. (2011). Congestible intellectual property and impure public goods. Northwestern Journal of Technology and Intellectual Property, 9(8), 533. Retrieved from http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1152&context=njtip
According to our textbook, “Real property constitutes land and all things permanently attached to it (i.e. a house, a tree or coal below land). Intellectual property such as copyrights, patents and trademarks is personally owned but generally treated as a separate form of property by the law. Personal property is characterized by its portable nature; it can be carried from place to place (i.e. tangible personal property or intangible personal property)” (Roger, 2012).
It is termed as a sign, symbol or a device, intended to define the goods and services of one from those of others within the same category. It’s how you differentiate yourself from the other brands. You may even call it a Trademark.
According to chapter 28 Liuzzo, states that a trademark, is "any word, name, symbol, or
People move away from their extended families, and traditions can fade, which is why it is important to have a trademark that easily identifies your ...
For visual identity system, Industrial Revolution, its mass manufacturing and marketing were improved the value and importance of trademarks but it went so far beyond trademarks and symbols.
So, if you believe someone has violated your trade secret rights, you can seek an injunction against the person or group.
Though Intellectual Property laws are generally territorial in character, protection of trade secrets varies with changing jurisdictions. The policy behind trade secret protection is to encourage research and development by providing protection to the originator of business information, and maintain proper standards of business ethics. Trade secrets act as incentive to innovation. They serve a pivotal role in protecting such innovations and also establish rights pertinent to the use of new technology.
Secondly, Loss of reputation. First example, if company “A” that not do well for its protection of the intellectual property. Company “B” may use the Name of Company “A” ...
...of a signature automatically associate the goods or service generated a load of sense, in this case, social concerns and environmental awareness, which people respond positively valued and know.
Ultimately then, trademark protections protect both consumers and producers: they help reduce
A trademark is a distinctive indicator that used by a company or business to identify the brand, products or services. And the trademark can represent a logo, symbol, word and graphic. You can protect your logo or signature by applying/register through IPOS so that others will not have the chance to grab your ideas or even modify to look similar. Once acquired, a trademark can last indefi...
...a and without a presence on the Internet. Thousands of domain names were registered with the ulterior motives of reselling the domain names for profit, or of using established trade marks and brands to attract custom to web sites by registrants with no actual relation or right to the mark or brand. It was, therefore, only a matter of time before an inherent tension between domain names and intellectual property rights became apparent, which tension raises challenging policy questions.