Trade Marks and Related Rights

This subject has the following teaching availabilities in 2012:

100-126 hours.

Legal Method and Reasoning; Principles of Public Law; Torts; Legal Theory; Obligations; Contracts; Property or in each case their equivalents.

None.

None.

None.

For the purposes of considering requests for Reasonable Adjustments under the Disability Standards for Education (Cwth 2005), and Students Experiencing Academic Disadvantage Policy, academic requirements for this subject are articulated in the Subject Description, Subject Objectives, Generic Skills, and Assessment Requirements of this entry.

The University is dedicated to providing support to those with special requirements. Further details on the disability support scheme can be found at the Disability Liaison Unit website: http://www.services.unimelb.edu.au/disability/.

This subject is concerned with intellectual property law - legal rights attaching to intangible subject matter -as it relates to marketing and the rights of traders to protect their goodwill and reputation. The course examines the laws which regulate the use of trade marks, names, logos, and other trade indicia used to promote goods and services. The course will situate these laws in a framework of economic and social policy. The course will include consideration of:

• Trade marks registered under the Trade Marks Act 1995 (Cth): a study of the principles of law relating to the Trade Marks Act 1995, including the methods for obtaining, maintaining, exploiting and protecting registered trade marks;
• Passing off and related actions: this part of the course involves a study of other the legal mechanisms for protecting trade insignia and commercial reputation. These means include the common law action for passing off, and those provisions of the Trade Practices Act 1974 (Cth) (and equivalent State legislation) which proscribe misleading and deceptive conduct;
• Other special cases: other systems for protecting commercial reputation and get-up: such as the Geographical Indications system, and the UDRP (relating to domain names).

A student who has successfully completed this subject should:

• Understand the nature and rationales of the Australian trade marks system and related areas of consumer protection law;
• Understand the principles of law for obtaining, maintaining, protecting and exploiting a registered trade mark under the Trade Marks Act 1995, and be able to apply these principles in particular scenarios;
• Understand the principles of law by which unregistered trade marks are protected in Australia, and be able to apply these principles to new scenarios;
• Be able to evaluate critically and analyse the principles of law which protect trade marks and commercial reputation, and the interaction of that law with other important principles such as free and fair competition between traders, and freedom of expression;
• Be able to evaluate proposals to extend or alter the law relating to trade mark and commercial reputation.

Three hour supervised (open-book) exam, during the examination period, 100%.

Legislation
Trade Marks Act 1995 (Cth)
Trade Marks Regulations 1995

Reading Materials
Printed materials will be available from the Melbourne Law School;

Prescribed Textbook
Andrew Stewart, Philip Griffith and Judith Bannister, Intellectual Property in Australia (LexisNexis Butterworths, 4th Ed, 2010).

This subject is not available as a breadth subject.

On completion of the subject, students should have developed the following generic skills:

• Attitudes towards knowledge that include valuing truth, openness to new ideas and ethics associated with knowledge creation and usage;
• The capacity for close reading and analysis of a range of sources;
• The capacity for critical and independent thought and reflection;
• The capacity to solve problems, including through the collection and evaluation of information;
• The capacity to communicate, both orally and in writing;
• The capacity to plan and manage time;
• The capacity to participate as a member of a team;
• Intercultural sensitivity and understanding.

In addition, on completion of the subject, students should have developed the following skills specific to the discipline of law:

• Analyse the nature of trade mark and related rights systems, and assess whether those systems achieve the goals of the relevant legal regimes;
• Analyse judgments, statutes and secondary materials relating to trade marks and related rights, and in particular to:
  
  - Extract important features from judgments and statutes;
  - Reconcile apparent conflicts and inconsistencies;
  - Evaluate the development of legal principle;
  - Apply principles arising from the case law to new scenarios.
• Write legal opinions on particular scenarios in which trade marks and related rights are implicated, including:
  
  - Identifying relevant legal issues;
  - Arriving at reasoned conclusions as to rights and obligations of the parties;
  - Comment on the desirability of the outcomes of applying the law.