Wikisource

Page:JT International SA v Commonwealth of Australia.pdf/23

This page has been proofread, but needs to be validated.
French CJ

13.

equities which "may be enforced in the like manner as in respect of any other personal property."[1] Their existence is conditioned upon satisfaction of requirements for registration. They can cease to exist by operation of statutory mechanisms such as rectification, removal from the register, or failure to renew[2]. As pointed out in the 5th edition of Shanahan's Australian Law of Trade Marks and Passing Off[3]:

"the property in a statutory trade mark is not permanent."

Registered designs are a species of personal property, capable of assignment and transmission by operation of law[4]. The registered owner of a registered design has a number of exclusive rights relating to the making, importation, sale and use of products embodying the design and the right to authorise another to do any of those things[5]. The rationale for the statutory protection of registered designs has been variously stated. Professor Ricketson observed in 1984[6]:

"The principal object of the registered designs system is to give protection, through the grant of a monopoly right, to the visual form of articles which are commercially mass-produced. Concern with questions of design and appearances has had a long history, as it has been seen for many hundreds of years that good design is an integral part of the manufacture and marketing of all kinds of useful articles."

The Patents Act 1990 (Cth) provides that a patent gives the patentee the exclusive rights, during the term of the patent, to exploit the invention and to authorise another person to exploit the invention[7]. Those exclusive rights are "personal property and are capable of assignment and of devolution by law."[8]

  1. ↑ Trade Marks Act 1905 (Cth), ss 49(3), 58–60; Trade Marks Act 1955 (Cth), ss 57 and 82; Trade Marks Act 1995 (Cth), s 21.
  2. ↑ Trade Marks Act 1995 (Cth), ss 85–87, 92; Designs Act 2003 (Cth), ss 51, 52, 65, 66, 120; Patents Act 1990 (Cth), ss 82, 85, 101, 101F, 101J, 134, 137, 138.
  3. ↑ Shanahan's Australian Law of Trade Marks and Passing Off, 5th ed, (2012) at 78.
  4. ↑ Designs Act 1906 (Cth), s 16; Designs Act 2003 (Cth), s 10.
  5. ↑ Designs Act 1906 (Cth), ss 12 and 15; Designs Act 2003 (Cth), s 10.
  6. ↑ Ricketson, The Law of Intellectual Property, (1984) at 445.
  7. ↑ Patents Act 1990 (Cth), s 13(1).
  8. ↑ Patents Act 1990 (Cth), s 13(2).
Retrieved from "https://en.wikisource.org/w/index.php?title=Page:JT_International_SA_v_Commonwealth_of_Australia.pdf/23&oldid=13494932"