Intellectual Property Rights - Answer 1

If the band wants to register the name The Matador for their business name that certain things need to be taken care of according to the trademarks act 1995. Any word that is descriptive or is a phrase and itself must not be registered under the trademark act. The Matador is a dictionary word and must not be used to register it as a business name. Now the important thing is that the word that is to be registered under the trademark act must not mislead the public regarding the nature of goods or services[1]. The dictionary meaning of matador means the bullfighter and it is the band that wants to register the name The Matador. Therefore in this case the business name will deceive the public and they cannot make out the fact that whether it is the brand name or the name of any bullfighting club. Also according to the trademark act 1995 trade name must be distinguished from the services from those of the other. 

B. According to the trademarks act 1995, the combinations of letters that are commonly used must not be registered as they are very unlikely to describe the services or goods. moreover, a single alphabet can also create a problem because the same can be used by the other person may be in the form of an abbreviation or any initial word concerning two different reasons. for instance, in the present case, the band wants to register "M" as The trademark but, likely, any other party can also register M for their mobile phone. Therefore this is the reason why one should not opt for registering a particular alphabet as their trademark[2].

C. yes definitely if under any case matador is registered as a trademark under the Australian territory then the band can claim entrenchment against Malle Bulls in case if they also used the horned shaped M trademark for their band. 

According to section 10 of the trademarks act 1995, any trademark that is either similar or deceptively similar to another trademark then the same trademark will be liable for infringement. in any case if the trademark resembles the other trademarks that can likely to cause confusion in the mind of the common people then the same has to be subjected under infringement[3]. in the light of the present facts and circumstances of the case, it can be clearly seen that the plaintiff had already patented the matador trademark with the Horned M. now under any case if the defendant also uses the same trademark then it is very likely that the common people might get confused because both the plaintiff and defendant are providing the same services that are both parties are bands. According to part 12 and section, 120 of the trademarks act 1995. This is a clear case of infringement because in the present case the defendant is using The trademark which is deceptively similar to that of the plaintiff in the present case. As per section 6 of the trademarks act 1995, the plaintiff of registered its matador trademark, and therefore according to section 10, the defendant cannot use a deceptively similar trademark.

D It is a well-known fact that Australia operates under the common law and apart from the trademarks act 1995 it is also the common law that grants the plaintiff an opportunity to bring the action of passing off against the defendant in the present case. It is clear from the facts and circumstances of the case that Mallee Bulls trademark registration has been refused by the registrar and under this case also when any unregistered trademark operator enjoys the benefits by receiving the public can be charged under passing off under tort and trademarks act 1995. Passing off action can be taken for the defendant where it is seen that the intention of the defendant is to mislead the public by falsely representing the nature of the goods and services which is the situation of the present case[4].

According to section 230 of The Trademarks act, 1995 and action of passing off arises if the defendant uses the registered trademark of any registered for the authorized owner. Apart from this, the trademark use must be substantially identical or the same can be deceptively similar from the trademark of the plaintiff. however, the action of passing off will not be brought under the case where the defendant is also a registered trademark owner and was unaware and had no reasonable intention to deceive the public. however, it must be noticed in the present facts and circumstances of the case no such good faith was there on the part of the defendant, and Malle Bull band was well aware of the fact that matador has been registered by the other band named Matt. Therefore this is a clear case of passing off[5].

E. According to the trademarks act 1995, any trademark symbol that is engraved on the body of an individual whether in the form of a tattoo or a picture cannot be used for commercial purposes by any person. Therefore by this rule, Matte can prohibit the photographer to publish his pictures because this is the violation of his trademark[6]. Merely taking photographs is not a violation but if the photographs are published and the person publishing the photograph is getting some monetary advantages then the same will come within the Ambit of trademark infringement. The unauthorized use of TM symbols by any person will be deemed as trademark infringement according to the trademark act 1995. Under any circumstance, if the photographer takes the permission of Matte before publishing the photographs then the photographer can abstain from the infringement[7]. According to the trademarks act 1995, any trademark symbol that is engraved on the body of an individual whether in the form of a tattoo or a picture cannot be used for commercial purposes by any person. Therefore by this rule, Matte can prohibit the photographer to publish his pictures because this is the violation of his trademark. Medley taking photographs is not a violation but if the photographs are published and the person publishing the photograph is getting some monetary advantages then the same will come within the Ambit of trademark infringement. The unauthorized use of TM symbols by any person will be deemed as trademark infringement according to the trademark act 1995[8]. 

Intellectual Property Rights - Answer 2

In the light of the present facts and circumstances of the case Aldi cool Private limited if one of the producers of cooling drinks and the product is widely known as Aldi cool Esky. However, there is another trademark registered for Nylex Pty Ltd for "Esky coolers". However, there are remedies available for Nylex Pty Ltd that can prevent the other competitors that is Aldi Cool Pty Ltd from taking into consideration or operating under the word of Esky. This is a clear case of trademark infringement under section 120 of the trademarks act 1995 (Cth). any person who uses the same trademark as that of the competitor for uses either the substantially identical or deceptively similar TM then under such circumstances person will be liable for trademark infringement under part 12 and section 125 clause 1 of trademarks act 1995. In the present case, Aldi cool Pty Ltd uses the word Aldi cool Esky for their drinking beverage. 

However, on the other side Nylex Pty Ltd is unhappy with the fact that the competitors are using their trademark. It is clear from the facts of the case that Aldi Cool Pty Ltd is using the word "Esky", this world is not deceptively similar but exactly the same as that of the Nylex. The four it can be said that this is a case of trademark infringement. Moreover, it can be seen that according to section 120 sub-clause to the goods are of the same description for both the parties as they were dealing with the cooling drinks. According to the Act, the supplies to any service that is closely related to the registered name of goods then this will be the case of trademark infringement[9]. Moreover, it can be seen that The trademark was quite known in the territory of Australia and the competitor intentionally uses the same trademark to deceive the public. under any circumstances when a particular trademark is well known in the country and indicates the same connection with the service of the competitor then the person has to be liable for trademark infringement. Certain reliefs and remedies are available to Nylex Pty Ltd by the virtue of section 126 of the trademarks act 1995. However, it must be taken into the care of that only the registered patents will be provided a remedy by the court of law. Various remedies can be availed by Nylex in the present case.

Firstly the court can grant an injunction to the other party that is Aldi Cool in the present case. The injunction will be following the court of law. However, the plaintiff must not be subjected to section 127 which talks about the grounds when the plaintiff will not be entitled to the damages by the defendant. However, the present case does not comes within the Ambit of section 127 therefore the plaintiff can be provided injunctions and damages under section 126 of the trademarks act 1995[10]. 

Apart from this according to section 126 sub-clause to the court of law can incorporate any additional charges for the amount for the assessment of damages of the registered trademark. The court will look upon the flag and see revolving around the infringement and apart from this the court will also determine the similarity in the infringement of the registered trademark of the plaintiff. Moreover, the conduct of the party also plays a crucial role in determining the number of damages to be incurred upon the defendant[11].

Therefore it can be said that there are certain released that are provided under section 126 that can be availed by the plaintiff in the present case. The injunction can be granted by the court where the trademark is already registered.

Secondly, damages on the accounts of profit will be determined by the court. However, the damages or accounts of profit will not be granted if the infringer had already applied for removing the trademark after knowing that it has already been registered[12]. As in the case of Scandinavian Tobacco Group Eersel BV v Trojan Trading Company Pty, the court held that it is the responsibility of the defendant to check upon the trademarks used by him and in case he got to know that the same has already in practice, it should be surrendered immediately. 

 Under any circumstances, if the defendant had used the trademark in good faith or without the knowledge of the registration. Under different circumstances, the court will also grant additional damages to the defendant where the benefit had been occurred to the defendant by using a similar trademark. Apart from this part 13 of the trademarks act 1995 (Cth) also grants various penalties for the defendant. These penalties amount to the seizure of goods by the court.

Moreover, it is a case of infringement under these circumstances because the defendant had used the substantially identical and deceptively similar trademark as that of the plaintiff. Apart from this The trademark was well known in the territory of Australia and this was known to the defendant in the present case. Moreover, both the parties were dealing in drinking beverages therefore the service and goats are closely related and off are the same description therefore this is a case of infringement under section 150. Moreover, according to section 10 of the trademarks act 1995, The trademark used by the defendant was so digitally similar that it can likely to cause confusion in the minds of the common people or the consumers. Because of this confusion, the defendant had incurred a good amount of profit.

Intellectual Property Rights - Answer 3

Certain grounds must be met to satisfy the requirements of the patent according to the patent Act 1990. The patent must be novel and unique. According to section 7 of the Act talks about novelty inventive step and innovative steps. To register any patent it is important that it must be novel as compared to any prior art. The invention must not be made public before registering it for the patent. It is important that there has to be no prior art information of the invention. In other words, there must be no relationship between the act and the document. In other words subsection a, b, and c must be complied with by the inventors to patent the invention.

Another important step is the inventive step. This suggests that there has to be no general knowledge about that particular invention and the same must not be in the knowledge of the common people. In other words, the invention must not be of waste and there has to be no claim before the date of application of such invention by any other person[13]. 

Therefore according to section 7 novelty, innovative step, and inventive step are some of the important elements that must be fulfilled for patentability.

B. Other than the lawyer, a patent attorney can help an individual to register the patent. A patent attorney is a trained person who is registered under the patent attorneys Act and complies with all the regulations of the invention. Apart from this, the patent attorney maintains the transaction of business, documents, and all the related proceedings. However, according to section 200 sub-clause 3 of the Patent Act 1990, the attorneys are not allowed to formulate documents for litigation proceedings. According to the case of Decker Corporation Private limited versus Dart industries, a patent attorney played a major role in helping the party to identify whether the patent will be valid or not with the help of paper reading of invention. This suggests that it is not only the lawyer but even a patent attorney who works in order to grant the patent.

C. It is very important that the idea must be novel. Charli much firstly files a provisional application under patents act 1900. The application will contain the intention of the patent according to section 29 and section 40 of the act. This will help Charlie to establish a date of priority[14]. The provisional application will not contain any claim and can be obtained before 12 months. This will help him to a certain priority date for his patent application. Then comes the standard patent where Charli had to provide the specifications of the patent by describing the invention. According to section 40a claim can be made by Charlie stating that he is the patent owner. Then comes the search and we must look out that there is no prior art of that particular invention otherwise the same will be rejected. When you are satisfied that there are no such prior arts then the application can be moved ahead of where Charlie can directly apply for a patent with the registrar of the patent. 

Thereafter the patent attorney will do publication. After publication, there is an examination according to the intellectual property laws of Australia where either the same can be opposed by any other party by submitting evidence. If not then the patent application will be accepted and Charlie will be provided the grant of patent. Once the patent is granted Charlie must go for an innovation patent where 12 months initial protection will be given with minor formalities.

D. In case if Charlie wants to apply for international registration for his invention that there are certain steps that must be taken into the care of by Charlie. in the particular country where the inventor wants to file the application a separate application has to be filed under that country. that particular application for an international patent will be filed under the patent cooperation Treaty that is also known as PCT. This application is administered by WIPO[15]. The application can be filed at the same time with multiple countries where the inventor wants to file for international protection. For international protection, the Paris route or the Paris convention comes into play. Carlie can file multiple applications in the member countries of Paris conventions within the period of 12 months. Under such circumstances the first filing date will be considered as the date of priority.

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