91.
use of the licensed trade mark. If the licensee is a manufacturer, those conditions may require maintenance of the quality of the goods to which the licensed trade mark is to be applied.
In Colbeam Palmer, when considering infringement of a trade mark registered under the Trade Marks Act 1955, Windeyer J said[1]:
"[I]t can hardly be said that a registered trade mark is not a species of property of the person whom the statute describes as its registered proprietor, and which it permits him to assign".
Under the Trade Marks Act 1955, subject to certain restrictions which do not matter for present purposes, a registered owner of a trade mark could assign the trade mark with or without goodwill[2] and license another to use the trade mark under a registered user system then in place[3]. Under the Trade Marks Act, the current authorised user provisions (which replaced the previous registered user system) allow parties freedom to set the terms of a trade mark licence without any scrutiny by the Registrar of Trade Marks, and the recording of a licence is voluntary[4].
The Copyright Act, the Designs Act and the Patents Act all provide for exclusive rights to use or exploit the incorporeal property with which they deal, together with exclusive rights to assign, or to authorise or license others to use or exploit, the property.
Sections 20(2) and 21(2) of the Trade Marks Act refer to a registered owner's right to relief in respect of infringement, but the value of a registered owner's statutory property has always also included a right to assign (enlarged over time, as explained above), and presently includes the right to license as well. For the purposes of s 51(xxxi), the plaintiffs' intellectual property rights and interests constitute property capable of acquisition and attracting the requirement of just terms. Further, in the case of the plaintiffs' registered trade marks, the question of whether there has been an acquisition cannot be confined to the consideration that the Packaging Act preserves a registered owner's right to seek relief in respect of infringement.
