French CJ
12.
"a law reducing the content of subsisting statutory exclusive rights, such as those of copyright and patent owners, would attract the operation of s 51(xxxi)." (footnote omitted)
On the other hand, that statement is not to be taken as support for the proposition that the extinguishment or restriction of a statutory exclusive right, without more, would constitute an acquisition for the purpose of s 51(xxxi). That statement was made in a context of a rejection of the broad proposition that the statutory extinguishment of statutory rights is excluded from the scope of s 51(xxxi)[1]. The question whether there has been an acquisition of all or any of the plaintiffs' asserted property rights directs attention to their source and nature and the consequences of the restrictions imposed by the TPP Act upon their use or enjoyment. The property said to have been the subject of acquisition under the TPP Act comprises a mixture of statutory and associated or derivative non-statutory rights. It is useful to make brief generic reference to them.
At common law, the property interest associated with a trade mark was derived from the goodwill of the business which used it[2]. However, the rights conferred by successive Commonwealth statutes on the holders of registered trade marks have always been "a species of property of the person whom the statute describes as its registered proprietor"[3]. Those rights are the exclusive rights to use the trade mark and to authorise other persons to use the trade mark in relation to the goods and/or services in respect of which the trade mark is registered[4]. They are capable of assignment and transmission and attract
- ↑ See also the reference in the plurality judgment in Chaffey at 663 [21] to the Industrial Relations Act case (1996) 187 CLR 416 at 559; [1996] HCA 56 requiring some consequential benefit or financial gain before extinguishment of a cause of action could be characterised as an acquisition.
- ↑ AG Spalding & Bros v AW Gamage Ltd (1915) 32 RPC 273 at 284 per Lord Parker; Erven Warnink Besloten Vennootschap v J Townsend & Sons (Hull) Ltd [1979] AC 731 at 741 per Lord Diplock; Conagra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302 at 366–367 per Gummow J; French J agreeing at 377.
- ↑ Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45 at 68 [48], quoting with approval Colbeam Palmer Ltd v Stock Affiliates Pty Ltd (1968) 122 CLR 25 at 34 per Windeyer J; [1968] HCA 50. See also Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 477–478 per Stephen, Mason, Aickin and Wilson JJ; [1980] HCA 32.
- ↑ Trade Marks Act 1995 (Cth), s 20.
