Alan Cadman (Mitchell, Liberal Party) Share this | Hansard source

The matter is the claim by Estee Lauder of an Australian trademark. That is what it is about. They are trying to grab the trademark of an Australian company. This bill fixes the problem. What we are talking about is protecting trademarks of Australian companies. That is an important thing for Australian business. Being sure of their trademarks applies to employment and opportunity for Australian companies. I am explaining why this amendment to the current act has been necessary. It is necessary to protect Australian business against raiders like Estee Lauder who seek to knock off Australian companies. It is a very important issue and it is right on the button of what this act is about. That just explains that the Australian Labor Party are off the mark in everything that they do—in the parliament, on the economy, on Work Choices and everything else they get into. They do not understand the implications for the Australian community, Australian workers or Australian businesses.

I return to the topic. In this instance, the Australian family who were owners of the trademark thought that they were covered by the current act, and the amendment certainly improves their prospects of success. However, part of this act really does open up some difficult issues, in my opinion, about the capacity for non-Australian companies or, for that matter, Australian companies to seek information, under freedom of information, about the nature of the trademark application. They can seek to gather the papers behind the application, the details of that application for a trademark, and examine them, tear them apart and challenge them under freedom of information, and I believe that information is commercial-in-confidence. Anybody applying for a trademark does so believing that they are applying to a government agency that will safeguard their commercial property.

It is no fault of the department, IP Australia or anybody else; it is the way the act works and it needs to be changed. I am unhappy with this process because the capacity for somebody to get behind an application and gather commercially confidential information—because we have a Commonwealth arrangement for freedom of information—allows them to go into an area where I do not believe they have any right to go. I believe that IP Australia and the agencies of government need to make the decisions. If their decision is flawed, that should be challenged, but not the nature of the commercial application. That should not be challenged.

In this instance, this family have put forward papers to back up their trademark and explain why it needs to be as it is. They are required to present their marketing plan, their target market and details of their product—not the total chemistry—in their application for the trademark. That information under freedom of information can be available. The officers of IP Australia, who manage trademarks, can look at the release that they are about to make and decide—and we are asking a person who is an employee of the Commonwealth to decide—what is commercially valuable and what is not. It is not the role of a trademark official to be able to do that sort of thing. I do not believe that we should be putting those people in a position of deciding issues of commercial significance when an application for a trademark or to grab a trademark has been made and is being challenged by an overseas company, as in this instance. When the application is being challenged by an overseas company, the officer of IP Australia should decide issues of commercial significance. I guess that is my one complaint against the legislation.

What has been done by the government has been excellent. It needed tidying up. All of the measures contained in this legislation are a vast improvement. They are really good. But the freedom of information area is not covered by this legislation; it is covered by the general freedom of information legislation. I do not think the drafters ever considered trademarks when they drafted that original legislation. The original legislation was to allow the public to see whether proper decisions were being made, whether things were being hidden by the executive government and whether things were being done that were open and fair. But to allow that process to go one step beyond what is open and fair and permit an examination of details of policy and decision making within government, and in this instance encourage it to go beyond that and examine the details of the commercial background of a trademark application, I believe is absolutely wrong. It should not be allowed. Those companies are dependent on their trademarks for their future. To allow the details of that trademark and the marketing plans and all the rest, which are a critical part of the application and must be provided with the application for a trademark, to be accessed by a raider cannot be tolerated.

I know that in his area the Parliamentary Secretary to the Minister for Industry, Tourism and Resources and the government have done everything possible to assist these circumstances. This legislation goes one step further, which is excellent. My complaint is that the only flaw now resting in trademarks for Australian trademark applicants is that the freedom of information legislation almost destroys, in some way, the protections that this legislation grants. I thank the parliamentary secretary, my colleague and friend, for his support on this issue.

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