Crennan J
82.
The legislative context of the Packaging Act is of particular importance because the provisions refer to the Trade Marks Act and to Commonwealth legislation concerning the product information to be placed on the retail packaging of tobacco products. The Commerce (Trade Descriptions) Act 1905 (Cth) is also mentioned[1].
Relevantly, the Trade Marks Act provides that a registered owner of a trade mark has an exclusive right to use the trade mark[2], an exclusive right to authorise other persons to use the trade mark[3], a right to obtain relief in respect of infringement[4], and a right to assign a trade mark with or without the goodwill of the business concerned in the relevant goods[5]. The exclusive right to use the mark is a negative right to exclude others from using it. A positive right to obtain registration on the satisfaction of certain conditions[6] is "essentially ancillary"[7] to the negative right. Section 17 defines a trade mark:
"A trade mark is a sign used, or intended to be used, to distinguish goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person."
A "sign" is defined in s 6(1) as including:
"the following or any combination of the following, namely, any letter, word, name, signature, numeral, device, brand, heading, label, ticket, aspect of packaging, shape, colour, sound or scent." (emphasis added)
It can be noted that the Packaging Act relevantly restricts the use of trade marks and brand names[8].
Section 21 of the Trade Marks Act is also important. It provides:
- ↑ Packaging Act, s 4(1), in the definition of "trade description".
- ↑ Trade Marks Act, s 20(1)(a).
- ↑ Trade Marks Act, s 20(1)(b).
- ↑ Trade Marks Act, s 20(2) and Pt 12 (ss 120–130).
- ↑ Trade Marks Act, Pt 10 (ss 106–111), particularly s 106(3).
- ↑ Trade Marks Act, s 33.
- ↑ Cornish, Llewelyn and Aplin, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights, 7th ed (2010) at 7 [1–04].
- ↑ Packaging Act, s 20(3); Regulations, Pt 2 Divs 2.3 and 2.4.
