I OVERVIEW

Australian trademark law is largely based on one key statute, the Trade Marks Act 1995 (Cth) (TMA). This legislative framework provides the foundations for general trademark protection in Australia, in addition to establishing certain specialised forms of trademark protection (such as certification marks).

Australian trademark law has also developed through judicial precedent, particularly in relation to passing off (a common law cause of action in Australia), and is further supplemented by consumer protection legislation (specifically, a cause of action for misleading and deceptive conduct). This chapter provides an overview of Australian trademark law and describes in detail the process for registering and enforcing a trademark in Australia in both a civil and a criminal context.

There have been a number of interesting trademark decisions in the Australian courts over the past 12 months, some of which are discussed below in this chapter. In particular, the latest instalment of the Moroccanoil Israel Ltd v. Aldi Foods Pty Ltd2 litigation provides guidance in assessing whether a trademark is inherently adapted to distinguish the trademark owner's products.

Following on from recommendations contained in a 2016 report by the Australian Productivity Commission3 (the PC Report), in August 2018, the government passed new legislation containing various amendments to Australia's IP legislation, with a further bill likely to follow in late 2018 or early 2019. The salient features of this new legislation and the immediate anticipated impacts on Australian trademark law are explored below.

In Australia, as in other jurisdictions, the emergence of artificial intelligence and other new technologies is likely to have an increasing impact on trademark prosecution and enforcement systems in the coming years. Some emerging trends in this respect are also discussed below.

II LEGAL FRAMEWORK

i Legislation

The statutory framework for trademarks in Australia is the TMA, which was enacted, among other things, to comply with Australia's obligations under TRIPS4 and to address the findings of a government Working Party Report on trademark law reform.5

International trademark treaties do not have direct effect in Australian law. TRIPS and the Paris Convention6 form part of the trademark legislative framework only to the extent that they have been implemented by national legislation. Generally, implementation of international conventions has been effected through the TMA. For example, Section 29 of the TMA provides a right of priority in Australia for trademark applications that have been filed in another Paris Convention country within the past six months.

The other international convention of particular relevance to Australian trademark law is the Madrid Protocol.7 This created a centralised international trademark registration system, whereby an application for a trademark may be filed in one jurisdiction and then assessed by multiple national trademark offices (resulting, if successful, in a series of national trademarks).

i Authorities

The Trade Marks Office, which is a division of IP Australia, is responsible for trademarks in Australia. IP Australia itself is a government agency within the Department of Innovation, Industry, Science, Research and Tertiary Education.

The Trade Marks Office is organised under the Registrar of Trade Marks, a role established by the TMA.8 The Registrar of Trade Marks receives, examines and reports on trademark applications made under the TMA and is responsible for assessing whether a trademark application complies with the TMA.9 Other functions include determining disputes as to the classification of goods and services, and overseeing proceedings for the removal of a trademark from the register. Pursuant to the TMA, the Registrar of Trade Marks also has powers to summon witnesses, receive evidence, require the production of documents, award costs in proceedings before the Registrar and notify any person of any matter that the Registrar considers should be brought to the person's notice.10

iii Substantive law

The primary statutory framework for trademarks in Australia is the TMA, as outlined above. In addition to the general trademark protection offered under the TMA, there are legal frameworks creating certain special categories of trademarks.

Sections 168 to 183 of the TMA provide a framework for certification marks, which are a form of trademark used to distinguish goods or services that have been certified by the owner of the certification mark as having a certain quality or other characteristic.

Plant varieties may be protected under the Plant Breeder's Rights Act 1994 (Cth). The Australian Grape and Wine Authority Act 2013 (Cth) and the Australian Grape and Wine Regulations 1981 (Cth) set out criteria for determining whether wines are protectable as geographical indications.

The registered trademark rights described above enjoy legal protection within statutory frameworks. There is not an equivalent statutory framework to protect unregistered trademarks, and no specific law prohibiting unfair competition exists in Australia. However, the common law tort of passing off (which has its origins in English law) and the statutory cause of action of misleading and deceptive conduct found in Section 18 of the Australian Consumer Law11 (ACL) may provide relevant actions.

Business names may be registered on the Australian Business Names Register, which is administered by the Australian Securities and Investments Commission (ASIC). The Business Names Registration Act 2011 (Cth) and the Business Names Registration Regulations 2011 (Cth) provide the legal framework for business name registrations in Australia. This does not afford any proprietary right over the registered business name but rather is a regulatory requirement.

Domain name policy in Australia is administered by .au Domain Administration Ltd (auDA) pursuant to a government appointment. Domain name registrations in Australia are subject to auDA's policies rather than a legal framework. Again, as discussed below, licences in respect of domain names do not afford a proprietary right over the names unless those domain names are used as trademarks.

III REGISTRATION OF MARKS

Trademark applications in Australia are usually completed online and the government cost is calculated per class, ranging from around A$250 to A$480 per class (depending on the method chosen and the type of mark). As of October 2016, no separate fees are payable upon registration of a mark. Trademark registrations must be renewed every 10 years, at a government cost of around A$400 per class.

Applications are typically examined within three to four months (although it is possible to apply for an expedited examination). The examiner will consider the application to confirm that it meets the TMA registrability requirements and all relevant formalities. If accepted by the examiner, the trademark will be advertised and open for opposition for two months. If no oppositions are received, the mark will proceed to registration with the priority date being the date of the application. If the application receives an adverse examination report, the applicant has 15 months from the date of the report for the application to be accepted (that is, to respond to the examiner's objections and have the examiner consider this response and reconsider the application in light of the response), with extensions of three or six months available upon payment of additional fees.

As Australia is a signatory to the Madrid Protocol, applicants for or owners of registered trademarks in Australia can use their applications or registrations as a basis to apply for international protection in any of the Madrid Protocol contracting countries. Applications are assessed by the relevant national offices and, if successful, marks are granted effectively the same protection in the chosen countries as they have in Australia. As with national marks, international trademark applications may be filed through IP Australia. Conversely, trademark owners overseas can designate Australia in their Madrid Protocol international trademark applications. These applications are assessed by the Trade Marks Office in Australia in the same way as national applications and, if granted, registration gives the overseas owner the same protection as if they had applied for a national mark in Australia. Use of the Madrid Protocol for international filings can be significantly cheaper and easier than applying for national trademarks in each country.

Australia is also a signatory to the Paris Convention, so that applications first filed in Australia can be filed in another Paris Convention country within six months, claiming the filing date from Australia. Foreign applicants can file in Australia in the same way. This means that no Australian application can progress to registration in less than six months to allow for priority claims.

i Inherent registrability

To be registrable under the TMA, a trademark must be a 'sign used or intended to be used to distinguish the goods or services dealt with or provided in the course of trade by a person' from the goods or services provided by another person.12

The definition of a 'sign' in the TMA is extremely broad. A sign can be any of, or any combination of, the following: letter, word, name, signature, numeral, device, brand heading, label, ticket, aspect of packaging, shape, colour, sound or scent.13

To be registrable, a trademark must therefore satisfy the requirement of being capable of distinguishing – either because it is inherently distinctive, or because it has acquired distinctiveness through use so that in practice it serves to distinguish the goods or services of the owner.

A note to Section 41(1) of the TMA provides that a trademark is not likely to be inherently distinctive if it consists wholly of a sign that is used to indicate characteristics of the goods or services or the time of production of the goods or rendering the services. This guidance is considered in the context of the goods and services for which registration is sought – a trademark that lacks distinctiveness for one class of registration may still be inherently distinctive in relation to another.

The examiner will object to an application if the trademark is considered to be descriptive or lacking distinctiveness.14 Applicants may be able to overcome this objection by demonstrating inherent distinctiveness or by providing evidence of use to demonstrate that the mark has acquired distinctiveness and now serves as an indicator of their organisation.15

It is possible to register a trademark for a domain name but to do so the trademark owner would need to overcome the distinctiveness hurdles described above. Domain names are unlikely to be inherently distinctive and instead must acquire distinctiveness so as to distinguish the goods or services offered under that domain as originating from an organisation. Even if the composite parts of a domain name would otherwise be descriptive (such as 'realestate.com.au'), if the domain name has acquired a secondary meaning so as to identify goods or services as originating from an organisation it has in fact acquired distinctiveness and may be registrable as a trademark.16

ii Prior rights

The examiner will also raise an objection if the trademark is considered substantially identical or deceptively similar to an earlier registered or pending trademark, and covers similar or closely related goods or services.17 Applicants may be able to overcome such objections by demonstrating honest concurrent use, prior use dating from before the priority date of the cited mark, or some other circumstances that satisfy the examiner that the mark should be registered.18

iii Inter partes proceedings

Once an application has been advertised, third parties can oppose the registration of a trademark on various grounds, including:

  1. the grounds for rejection of an application discussed above, being a lack of distinctiveness or the existence of prior rights;
  2. that the applicant is not the rightful owner of the trademark, is not intending to use the mark, or has made the application in bad faith; and
  3. that the trademark is similar to another (unregistered) mark that has acquired a reputation in Australia, such that the registration would be likely to cause confusion among consumers.19

Third parties may also write to the Registrar seeking revocation of acceptance of a trademark application if they consider that IP Australia has made an error in accepting an application, usually because of a prior right missed in IP Australia's search. It is at IP Australia's discretion whether to revoke acceptance, and such requests are rarely granted. Third parties can also apply to remove a registered mark if:

  1. the owner has not used the mark for a continuous period of three years prior to the date of the application;
  2. the owner did not have any intention to use the mark when it was registered; or
  3. the owner has not used the mark in good faith.20

If the owner of the mark wants to retain its registration, it must oppose the removal claim.

The inter partes proceedings described above (except revocation) are heard by a Hearing Officer from the Trade Marks Office, to whom both parties provide written submissions and evidence in advance of the hearing and verbal submissions on the day of the hearing, although it is possible to have an opposition decided based on written submissions alone. The Officer will provide a written decision and reasons within three months.

iv Appeals

Either party may appeal to the Federal Court of Australia (FCA) or the Federal Circuit Court (FCC) within 21 days of the decision. Appeal hearings are de novo, so that new evidence and arguments can be introduced.21

IV CIVIL LITIGATION

Common causes of action for civil litigation are trademark infringement under the TMA, the common law tort of passing off, and for misleading and deceptive conduct under the ACL.

i Forums

The FCA, FCC and supreme courts of the various states and territories can all hear claims regarding trademark infringement, passing off and misleading and deceptive conduct; however, in practice, these claims are typically brought in the FCA.22 Intellectual property is one of nine specialised national practice areas (NPAs) for the purposes of FCA hearings, and trademarks is a sub-area within the intellectual property NPA.

The PC Report noted that few IP cases are currently initiated in the FCC because of a lack of judges with IP experience. To address this, in June 2017, the FCC announced a new pilot programme and practice direction for its Melbourne Registry to streamline the management of IP matters and increase the visibility of the FCC as an alternative to the FCA. The FCC has appointed three specialist IP judges, who will implement strict case management of proceedings, including the trial itself, which is limited to two days, to ensure an efficient use of the court's time and resources. The pilot programme was extended to Sydney and other state capital cities as of July 2018, with all IP filings anywhere in Australia to be initially docketed to a single IP specialist judge based out of the Sydney Registry, although the files may later be transferred to another judge for ultimate hearing and determination.

ii Pre-action dispute resolution

Alternative dispute resolution, including mediation, arbitration and expert determination, is strongly encouraged as an alternative to litigation. It is a requirement prior to launching proceedings in the FCA or the FCC that proper attempts have been made to resolve the dispute between the parties.23

In July 2017, IP Australia launched the IP Mediation Referral Service, which aims to provide small and medium-sized enterprises (SMEs) with access to qualified, accredited specialist mediators to resolve their disputes out of court. There are currently over 20 trademark specialist mediators listed with the IP Mediation Referral Service, although it remains to be seen how widely this will be adopted by SMEs as an alternative to formal legal action.

iii Causes of action

The owner of a registered trademark can bring an infringement claim against another party if that other party uses as a trademark a sign that is either identical or deceptively similar to the owner's registered trademark.24 There are, however, numerous defences to alleged infringement, including the use of a name or business location in good faith, descriptive use in good faith, use in comparative advertising, and prior and continuous use.25

Trademark infringement claims are often brought in conjunction with claims for passing off and misleading and deceptive conduct. As noted above, these causes of action depend upon whether consumers have been, or are likely to be, misled or deceived as to the origin of the respondent's goods or services, incorrectly believing that they come from or are affiliated with the applicant. Where the applicant has unregistered trademarks or suffers misuse of company, trade, business or domain name, the applicant will have to rely on these causes of action.

The leading authority on passing off requires a misrepresentation made in the course of trade (1) to prospective or actual customers of goods or services supplied by the injured party; (2) that is calculated to injure the business or goodwill of another trader; and (3) that causes actual damage to the business or goodwill of the claimant.26

The later English authority of Reckitt & Colman27 is also applied, in which the elements of passing off (often referred to as 'the classic trinity') were identified as (1) the existence of a reputation; (2) a misrepresentation leading or likely to lead the public to believe that the defendant's goods are the plaintiff's goods; and (3) damage suffered by the plaintiff as a result of that erroneous belief.

iv Conduct of proceedings

Court proceedings in Australia are similar to other common law systems with advocates (usually barristers) appearing in person before the courts.

For infringements requiring urgent restraint, the court has the power to order an interim injunction ordering that the alleged infringer ceases its action immediately, pending the outcome of the trial.

The court also has powers to require Anton Piller orders, which operate like a search warrant allowing the applicant to search the alleged infringer's property without notice and to seize evidence. Generally, these are only granted in serious cases where there is sufficient evidence that the subject of the order possesses important evidence and is likely to destroy it or otherwise cause it to be unavailable for use.

Substantive trademark infringement proceedings are commenced by a statement of claim. The alleged infringer then has the opportunity to reply to these claims. Following this, the parties provide each other with all relevant documents in their possession by way of discovery. Evidence in support of each aspect of the claim (including the quantum of damages) is then provided by the applicant, often by way of written statements such as affidavits by relevant witnesses or experts, and evidence in answer is provided by the defendant. This evidence is likely to be tested by way of cross-examination of witnesses during a hearing, after which the judge will rule on the facts, apply relevant law to the case and issue a judgment. Court proceedings can be lengthy and resolution of fully contested proceedings can take more than a year.

v Remedies

The court can grant an injunction to restrain further infringement, passing off or engagement in misleading or deceptive conduct, and at the option of the applicant, either damages or an account of profits.28 As a result of recent amendments, the court also has powers under the TMA to award additional punitive damages for trademark infringement if it considers it appropriate to do so, having regard to matters such as the flagrancy of the infringement, the need to deter others from similar conduct, the conduct of the infringer after the infringement (and particular after being informed of the infringement) and any benefit the infringer has gained as a result of the infringement.29 This power has been used in recent cases where it has been difficult to establish actual loss or where infringement has continued following notice of the relevant trademark owner's rights.30

V OTHER ENFORCEMENT PROCEEDINGS

The TMA and the ACL contain various criminal offences in relation to counterfeiting, which are brought by the Australian Federal Police or the Department of Public Prosecutions. In the case of the ACL, the Australian Competition and Consumer Commission (ACCC) has the power to commence proceedings. In Australia, it is a criminal offence to:

  1. falsify a registered trademark;
  2. falsely apply a registered trademark;
  3. alter or remove a trademark knowing it is a registered trademark;
  4. make a die, block, machine or instrument that can help in falsifying or removing a trademark;
  5. sell, possess, distribute or import a good, knowing that the trademark has been falsified or removed;31 and
  6. make certain false or misleading representations about goods or services, including in relation to the standard, history, value, place of origin, nature or characteristics of goods or services.32

The penalties for these criminal offences may include imprisonment or a fine. However, in practice, criminal proceedings are rarely brought and are typically confined to cases involving organised crime or public health and safety issues.

The TMA also contains a scheme allowing the Australian Customs Service (Customs) to seize imported shipments of goods suspected of infringing registered trademarks.33 Rights holders can lodge a notice of objection with Customs, listing the marks they would like to protect and Customs then seizes goods imported into Australia bearing these marks if they are suspected of being counterfeit. The importer has a short time to provide grounds for releasing the goods, otherwise they are automatically forfeited to Customs and ultimately destroyed.

VI RECENT AND PENDING CASES

i Trademarks with no inherent adaptability to distinguish

In 2018, the Full Court of the FCA handed down its decision in Aldi Foods Pty Ltd (Aldi) v. Moroccanoil Israel Ltd (MIL),34 an appeal in a complex case involving a number of overlapping trademark, passing-off, and misleading and deceptive conduct claims. MIL had applied to register the word mark 'MOROCCANOIL', which Aldi had opposed on a number of grounds, including that it is non-distinctive and other traders should be free to use it. The primary judge had determined that the mark was to some extent inherently adapted to distinguish MIL's goods; MIL's evidence of use was sufficient to demonstrate that MOROCCANOIL had come to distinguish MIL's goods as at the filing date; and therefore the mark could proceed to registration.

The Full Court disagreed, finding that, at the filing date, the mark was not to any extent inherently adapted to distinguish MIL's products, as it was wholly descriptive. The extent of use that would have been required to demonstrate the requisite acquired distinctiveness was therefore greater. The Court held that MIL's use of the word mark solus (that is, separated from the distinctive get-up used by MIL, including an apothecary-style brown glass bottle, turquoise label and large orange letter 'M') was insufficient, and the mark was not registrable.

ii Test for 'substantial identity'

In the decision of JBS Australia Pty Ltd (JBS) v. Australian Meat Group Pty Ltd (AMG),35 the FCA confirmed the high threshold that must be met for marks to be considered substantially identical. JBS sold meat products under its AMH trademark (the AMH Mark),36 which had been registered since 1989. In 2014, AMG, a competitor in the meat industry, sought to register37 the AMG trademark (the AMG Mark) covering the same products, which was opposed by JBS on the basis of its prior rights in the AMH Mark. The Court engaged in a side-by-side comparison of the two marks and found they were not substantially identical, despite the fact that the letters 'AM' were essential features of both marks. The Court found that the differing letters 'H' and 'G' were sufficient to differentiate the marks. Nevertheless, the marks were found to be deceptively similar, on the basis that both featured similar acronyms within a stylised map of Australia. The inclusion of the words 'AUSTRALIAN MEAT GROUP' were insufficient to distinguish the AMG Mark.

This decision may provide comfort for trademark lawyers, as it represents a return to the traditionally narrow interpretation of the test for substantial identity.

iii Colour trademarks

The registrability of colour trademarks was recently considered in the decision of Frucor Beverages Limited (Frucor) v. The Coca-Cola Company (Coca-Cola).38 This case involved an appeal to the FCA against a decision of the Trade Marks Office in respect of an application by Frucor to register a particular shade of green (Pantone 376C) as used on the packaging of their 'V' energy drinks. The application was opposed by Coca-Cola and the opposition was successful before the Trade Marks Office, on the basis that Frucor had attached the incorrect swatch of colour to its application, so the application was not an accurate description of the mark and Frucor had insufficient evidence of use to establish that the shade of green applied for was capable of distinguishing its energy drinks from those of other traders.

On appeal, the FCA agreed that the inaccuracy in the trademark application meant consumers could not ascertain the true representation of the mark from the Trade Marks Register. More fundamentally though, the FCA also found that Frucor's use of the proposed shade of green was merely descriptive and not distinctive in the trademark sense. Looking at examples of use of the colour on 'V' energy products and Frucor's marketing material, the FCA determined that the colour was consistently used with the distinctive 'V' logo. As such, the FCA found that while consumers would regard the shade of green associated with 'V' energy drinks as an indication of the core product, the colour did not function as a separate trademark independently of the 'V' logo and therefore was not registerable.

VII OUTLOOK

i Amendments to the TMA

The coming years are likely to herald some changes to the TMA and Australian trademark law. In August 2018, the Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Act 2018 (the Act) was passed by both houses of Parliament and received royal assent, with some parts of the Act coming into force immediately. As the name implies, the Act seeks to give effect to aspects of the government's response to the PC Report.

From a trademarks perspective, the Act contains an amendment to the TMA that amends the grace period before new trademark registrations can be challenged for non-use, from five years from the date of filing to three years from the date the registered trademark is entered onto the Register. This date is not the date the application is filed but the date when all issues have been resolved and all final fees have been paid. This is intended to assist in decluttering the Trade Marks Register, and in most cases will reduce the effective period before a trademark is vulnerable to removal (as most trademarks are registered within a year or less of application). In some instances, however, it could still be five years (or more) from the date of application before a mark is vulnerable to removal, if there are obstacles to registration that cause delay, such as an opposition to the registration.

The Act also contains an amendment to the TMA, which clarifies that the parallel importation of marked goods does not constitute trademark infringement. 'International exhaustion' has been recognised by the Australian courts in recent cases, and the amendment seeks to align the TMA with these court decisions and provide certainty for importers and trademark owners.

The PC Report made a number of additional recommendations to reform the trademarks system, including requiring a statement of 'use' or 'intention to use' marks at the points of application, registration and renewal, removing the presumption of registrability and linking the Australian Trade Mark Search database with the business registration portal. It does not appear that the government intends to take up these recommendations in the current round of amendments.

In 2017, IP Australia sought public comment on the introduction of divisional applications for international registrations designating Australia under the Madrid Protocol and consequential proposals to harmonise practice in Australia with current international procedures. IP Australia considered this a high-priority change, but it does not seem to be part of the latest round of amendments.

ii Role of emerging technologies

IP Australia has demonstrated its willingness to embrace emerging technologies such as artificial intelligence and blockchain to improve the registration and enforcement of trademark rights.

In May 2018, IP Australia launched the online platform Trade Mark Assist, a simple tool that assists users to check whether their proposed trademark is a good candidate for registration, including whether there are likely to be citation objections raised against the mark, and whether it is likely to meet objections on the basis of non-distinctiveness. The programme then uses machine-learning algorithms to assist users in identifying the most appropriate goods and services to cover in their application, reducing complexity and common applicant errors. This may be helpful in assisting trademark owners with simple trademark portfolios to begin to form trademark management strategies.

IP Australia has also recently partnered with a local blockchain firm to trial a blockchain technology to mitigate supply chain risks arising in the export of baby formula bearing Australian registered trademarks. Through digital identification of the Australian trademarks, manufacturers or exporters are able to notarise the journey of a can of baby formula from Australia to its overseas destination, so the ultimate consumer can be certain of its provenance. IP Australia is currently exploring the potential for blockchain technology to be applied in a variety of other ways, including in the registration and licensing of IP rights, the management of royalty payments and the identification of IP infringements.


Footnotes

1 Frances Drummond is a partner, Sophie Lees is a senior associate and Isobel Taylor is an associate at Norton Rose Fulbright.

2 [2018] FCAFC 93.

3 Productivity Commission 2016, Intellectual Property Arrangements, Inquiry Report No. 78, Canberra.

4 Agreement on Trade-Related Aspects of Intellectual Property Rights, 15 April 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 UNTS 299, 33 ILM 1197 (1994).

5 Working Party to Review the Trade Marks Legislation, Recommended Changes to the Australian Trade Marks Legislation, Department of Science and Technology (Canberra, 1992).

6 Paris Convention for the Protection of Industrial Property (as amended on 28 September 1979) 21 UST 1583, 828 UNTS 305.

7 Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks (as amended on 28 September 1979) 30 ILM 1455 (1991).

8 Trade Marks Act 1995 (Cth), Section 201.

9 ibid., Section 31.

10 ibid., Section 202.

11 Competition and Consumer Act 2010 (Cth), Schedule 2 (Australian Consumer Law).

12 Trade Marks Act 1995 (Cth), Section 17.

13 ibid., Section 6.

14 ibid., Section 41.

15 ibid.

16 REA Group Ltd v. Real Estate 1 Ltd [2013] FCA 559, paragraphs 106–110.

17 Trade Marks Act 1995 (Cth), Section 44.

18 ibid., Section 44.

19 ibid., Part 5, Division 2.

20 ibid., Section 92.

21 Registrar of Trade Marks v. Woolworths (1999) 45 IPR 411.

22 Trade Marks Act 1995 (Cth), Section 190; Competition and Consumer Act 2010 (Cth) ss 138, 138A, 138B.

23 Civil Dispute Resolution Act 2011 (Cth), Section 6.

24 Trade Marks Act 1995 (Cth), Section 120.

25 ibid., Sections 122 and 124.

26 Erven Warnink BV v. J Townend & Sons (Hull) Ltd (No. 1) [1979] AC 731.

27 Reckitt & Colman Products Ltd v. Borden Inc (1990) 17 IPR 1.

28 Trade Marks Act 1995 (Cth), Section 126; Australian Consumer Law, Sections 232 and 236.

29 Trade Marks Act 1995 (Cth), Section 126.

30 See, for example, Halal Certification Authority Pty Limited v. Scadilone Pty Limited [2014] FCA 614 and Vertical Leisure Limited & Anor v. Skyrunner Pty Ltd & Anor [2014] FCCA 2033.

31 Trade Marks Act 1995 (Cth), Part 14.

32 Competition and Consumer Act 2010 (Cth), Schedule 2 (Australian Consumer Law), Chapter 4.

33 Trade Marks Act 1995 (Cth), Part 13.

34 [2018] FCAFC 93.

35 [2017] FCA 1421.

36 Australian trademark registration No. 515268 in class 29 in the name of JBS Australia Pty Ltd.

37 Australian trademark application No. 1616230 in classes 29, 35, 39 and 40 in the name of Australian Meat Group Pty Ltd.

38 [2018] FCA 993.