35.
"intellectual property" within the description in s 51(xviii) of the Constitution, namely copyrights, patents of inventions and designs and trade marks. It is true that upon grounds specified in the relevant statutes patents and designs may be revoked and trade mark registrations may be expunged from the register. But even at general law, an estate or interest in land or other property may be defeasible upon the operation of a condition subsequent in the grant, without losing its proprietary nature.
In the end, one cannot gainsay two statements by Windeyer J. The first, in Colbeam Palmer Ltd v Stock Affiliates Pty Ltd[1], is that "although the proposition may involve one's conception of the nature of property, it 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 [owner], and which it permits him to assign" (emphasis added). The second, in Pacific Film Laboratories Pty Ltd v Federal Commissioner of Taxation [2], is that the essential nature of copyright is "a negative right … a power to prevent the making of a physical thing by copying" rather than "a right in an existing physical thing". Hence, copyright is "properly called an incorporeal right"[3]. Subsequently, in Australian Tape Manufacturers Association Ltd v The Commonwealth[4], Dawson and Toohey JJ said there could be no doubt "that copyright constitutes property within the scope of s 51(xxxi)". The same may be said of patents and registered designs.
It also should be accepted that at general law the goodwill attached to the business of the plaintiff by reason of the exploitation of trade marks and associated get-up answers the description of property. In Federal Commissioner of Taxation v Murry[5] it was said in the joint reasons:
"From the viewpoint of the proprietors of a business and subsequent purchasers, goodwill is an asset of the business[6] because it is
- ↑ (1968) 122 CLR 25 at 34; [1968] HCA 50. See also Attorney-General for NSW v Brewery Employes Union of NSW ("the Union Label Case") (1908) 6 CLR 469 at 512–513 per Griffith CJ; [1908] HCA 94; Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45 at 68 [48] per curiam.
- ↑ (1970) 121 CLR 154 at 167; [1970] HCA 36.
- ↑ (1970) 121 CLR 154 at 169 per Windeyer J.
- ↑ (1993) 176 CLR 480 at 527; [1993] HCA 10.
- ↑ (1998) 193 CLR 605 at 615 [23]; [1998] HCA 42. See also Manitoba Fisheries Ltd v The Queen [1979] 1 SCR 101 at 107–108.
- ↑ Bacchus Marsh Concentrated Milk Co Ltd (In liq) v Joseph Nathan & Co Ltd (1919) 26 CLR 410 at 438; [1919] HCA 18.
