¶ … Fred whether or not it is likely that he has committed a breach under the Trade Marks Act of 1995.
First, it must be observed that Fred has acted appropriately by registering his business' name. Australian law requires that business owners who operate a business under any name other than their own must register their business name and to do so prior to using the business name in actual practice. According to the facts of this case, Fred not only registered the name he also registered the name as a trademark which provided him with additional protection (Trademark Act, pt.3,¶20). A problem, however, may arise if the owner of Fred's competitor, Good Neighbors Fence, has also registered his business as a trademark. Under existing Australian Law there is no strict prohibition against businesses with similar names registering receiving registration. Registration is done by the individual provinces and, therefore, it is possible that similarly named businesses will be registered. It becomes the responsibility of the business owner who has concerns regarding the similarity of the trademarked names to raise the proper objection. Legally, the business who registers the trademark first in time is afforded priority and it becomes the responsibility of the later registering business to object to either the actual registration or the deceptive nature of the registration (Trademark Act, pt.5, ¶ 52-62A).
The facts in the instant case do not indicate which of the two businesses, "Good Neighbors Fence" or "Good Friends Fence" filed their trademark registration first. It will be assumed that Fred filed his registration first so that the discussion can now turn to the issue of whether Fred's business name is deceptively similar so as to be in violation of the Trademark Act. The case law on this issue has taken a variety of approaches in determining what constitutes either deceptively similar or substantially identical trademarking. Factors considered by the courts in making such determination include the degree of similarity (Beecham Group Plc. v.ADM Kao LLC, 2009); the nature of the shared elements (Wolverine World Wild, Inc. v. Khoda Ali Ahmed, 2008); and the nature of the products (Kimberley-Clark Worldwide, Inc. v. Goulimis, 2008). Using these factors to examine the trademarks at issue, Fred's use of the business name, "Good Friend's Fence," would appear to be appropriate. Although the business names of the two entities are similar in that two of the three words used in the trademarks are identical, the third word in each trademark differs substantially enough as to be make each business distinguishable. The purpose of the Trademark Act is to avoid any situation where the consuming public will be misled either through the use of similar business name or through a new business taking advantage of the good will created by a previously existing business using a similar name. In the instant case, neither condition exists because, based on existing case law, the names of the involved businesses are neither deceptively similar nor substantially identical as to cause confusion.
Under the circumstances of the instant case, Fred has not violated the terms of the Trademark Act or the common law.
2. You suggest he should register everything under the Designs Act 2003. Will Fred be able to do so?
Whether Fred should register his fence product under the Design Act is dependent upon how important he feels that the appearance of his product is unique. The purpose of registering a product under the Design Act is to protect the overall appearance of the product (Design Act, pt.4, ¶15.) The protection provided by the Act is broad and there are very few restrictions relative to what aspect of a product's appearance can be protected but the Design Act does not protect a product's function (Macrae Knitting 1936). If Fred wishes to protect the functionality of his fence product he must do so under...
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