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- Title
TRADE MARK LAW'S IDENTITY CRISIS (PART 1).
- Authors
HANDLER, MICHAEL
- Abstract
The concept of 'substantial identity' has not been the subject of sustained critical inquiry in Australian trade mark law, notwithstanding that it plays a crucial role in relation to trade mark ownership, non-use, amendments to representations, and the criminal offences. The first part of this two-part article reveals, through novel doctrinal analysis, how over the course of the twentieth century a settled, strict interpretation of substantial identity took shape in Australian trade mark law. This orthodox interpretation was recently disrupted by the Full Court of the Federal Court in Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd and Pham Global Pty Ltd v Insight Clinical Imaging Pty Ltd. In these decisions the Court reinterpreted earlier High Court authority to set up a new, significantly more expansive test of substantial identity -- one that is already starting to have a major, and concerning, impact throughout Australia's trade marks system.
- Subjects
AUSTRALIA; TRADEMARK laws; TRADE regulation; CORPORATION law; IDENTIFICATION; CONSTITUTIONAL law
- Publication
University of New South Wales Law Journal, 2021, Vol 44, Issue 1, p394
- ISSN
0313-0096
- Publication type
Article
- DOI
10.53637/eroc6525