Problem Paper Assignment The Trademark Act - 825 Words

Problem Paper Assignment: The Trademark Act (Case Study Sample) Content: PROBLEM PAPER 2Student NameInstitutionIntroduction to Commercial LawDate of SubmissionPROBLEM PAPER 2This problem question raises two major issues that need to be discussed so as to give Mariam the requisite advice. First, Did Cupcake Fakery use exhibit misleading and deceptive conduct in order to make their product more popular? Secondly, did Cupcake Fakery infringe on intellectual property rights of Mariams Company?Section 18 of Australian Consumer Law stipulates that a person shall not engage in conduct which is misleading or deceptive while in the course of any trade or commerce. This means that a business practitioner should not represent their products in a manner that portrays them to be of a certain standard even when they are not. For one to succeed in a claim under this section, they must prove that the statement made by the defendant was targeted to a section of the public whereby some people are intelligent; others gullible. The nature of the representatio n must be that it is possible to mislead or deceive the public.[Schedule 2 of the Competition and Consumer Act 2010.] [Coorey, Adrian, Australian consumer law, (Chatswood, N.S.W. LexisNexis Butterworths, 2014) 126.] [Burrell, Robert, and Michael Handler, Australian trade mark law, (South Melbourne, Vic: Oxford University Press, 2010) 57.] [Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435 at 443-444 [6]-[9]] Secondly, according to the Trademark Act, a person whose trademark rights have been infringed has a right to seek relief in court for the losses incurred. A person is adjudged to have infringed on a registered trademark if he uses a trademark which is closely identical with or deceptively similar to the registered one. Once registered the legal status of a trade mark lasts for ten years, a period which is also renewable for another ten years recurrently. In the event that the Court finds an infringement on the part of the defendant, some of the remed ies that are available to the plaintiff include awarding of damages, an injunction against the defendant or an order for an account of profits.[Trade Marks Act 1995 (Cth).] [Ibid, S. 20.] [Ibid, S. 120] From the facts given in this case, the actions of Cupcake Fakeries are questionable in light of S. 18 of Australian Consumer Law. Alexs Company sells cupcakes which are decorated with edible sugar dogs for children's birthday parties. The logo of this company is similar to that of Mariams Company save for the dog symbol which replaces the bone in Mariams Companys logo. The question that would arise during this suit is whether these facts would reasonably confuse a person who intended to buy Mariams Pupcake into buying the Cupcake. This concept was discussed extensively in the case of Taco Company of Australia Inc; Taco Bell v Taco Bell Pty Ltd (1982). In this case, the Court took the view that since the plaintiff Company had already established a reputation in Australia under the T aco Bell brand; the defendant US Companys action of using the same name was actually deceptive and misleading considering the local market. In contrast, in the case of Pinkys Pizza Ribs on the Run Pty Ltd v Pinkys Seymour Pizza and Pasta Pty Ltd, it was held that the defendants continued business would not amount to deception or misleading conduct because they had been operating in Seymour for a while, therefor e there would be no confusion.[ATPR 40-303 text 305 and 308.] [(1997) ATPR 41-600.] Therefore, it is prudent to note that the law considers the manner in which the target audience of the representation will interpret it. In this case, the target market for cupcakes is children who may not be able to distinguish between the two logos and they would directly link the two Companies to be the same.[Chew, Charles Y. C., Business Law, (Australia: Oxford University Press, 2014) 34.] Also, it is important to establish whether Cupcake Fakeries infringed on the trade mark rights of Pu pcake Bakeries. A trademark is generally used to distinguish the identity of various goods and services. In the case of Woolworths Ltd v BP PLC, BP could not register green as its logos shade of light simply because Woolworth had already registered the same colors. Drawing from the ratio decidendi of this case, it follows that if a color would impede registration of a logo, how about a whole similarity in logo design? Once a person or Company obtains a trademark, they gain an exclusive right to use it, authorize other players to use it and finally, to seek any available relief for infringement on their trademark rights.[S. 41, Trade Marks Act 1995 (Cth).] [[2006] FCAFC 132.] With respect to the foregoing, Pupcake Bakeries can successfully sue Cupcake Fakeries for deceptive and misleading conduct as p...