Gummow J
48.
goodwill would be assignable only in conjunction with the goodwill of the business in respect of which the get-up was used[1]. The underlying reason for the common law taking this attitude to assignments of goodwill is the loss of distinctiveness leading to the likelihood of deception of consumers as to the origin of goods. This reasoning may also apply to licensing of common law marks[2].
It is unnecessary to pursue further the question of whether the rights adhering to common law goodwill do not extend to rights of assignment or licensing and thereby deny subject matter for any deprivation by the Packaging Act sufficient to engage s 51(xxxi). This is because, in any event, there has been no acquisition of any interests of a proprietary nature by the Commonwealth or any other party by reason of the regime established by the Packaging Act.
Conclusions as to "acquisition"
In the Tasmanian Dam Case[3], Mason J said of the federal legislation there under challenge:
"In terms of its potential for use, the property is sterilized, in much the same way as a park which is dedicated to public purposes or vested in trustees for public purposes, subject, of course, to such use or development as may attract the consent of the Minister. In this sense, the property is 'dedicated' or devoted to uses, ie, protection and conservation which, by virtue of Australia's adoption of the Convention and the legislation, have become purposes of the Commonwealth. However, what is important in the present context is that neither the Commonwealth nor anyone else acquires by virtue of the legislation a proprietary interest of any kind in the property. The power of the Minister to refuse consent under the section is merely a power of veto. He cannot positively
- ↑ Lacteosote Ltd v Alberman [1927] 2 Ch 117 at 130; Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 100–101, 144–145; [1984] HCA 64; ConAgra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302 at 366–367.
- ↑ Bowden Wire Ltd v Bowden Brake Co Ltd (No 1) (1913) 30 RPC 580, Bowden Wire Ltd v Bowden Brake Co Ltd (1914) 31 RPC 385; Need v J H Coles Pty Ltd (1931) 46 CLR 470 at 479, 486–488; [1931] HCA 55; J H Coles Pty Ltd v Need (1933) 49 CLR 499 at 505–506; [1934] AC 82 at 89 (PC); Apand Pty Ltd v Kettle Chip Co Pty Ltd (1994) 52 FCR 474 at 484–486; New South Wales Dairy Corp v Murray Goulburn Co-op Co Ltd (1990) 171 CLR 363 at 422–423; Shanahan's Australian Law of Trade Marks and Passing Off, 5th ed (2012) at [80.1505].
- ↑ (1983) 158 CLR 1 at 145–146. See also at 181–182 per Murphy J.
