Bob Baldwin (Paterson, Liberal Party, Parliamentary Secretary to the Minister for Industry, Tourism and Resources) Share this | Hansard source

I present the explanatory memorandum to this bill. I move:

That this bill be now read a second time.

The Trade Marks Amendment Bill 2006 will amend the Trade Marks Act 1995. The current act was introduced as the result of a working party set up to review and streamline trademarks legislation. The act replaced legislation that had been in place since 1955.

The act has now been in force for 10 years. The government has carried out a review of trademarks legislation in keeping with our policy to keep legislation relevant and up-to-date.

The review sought comment from interest groups. The government released three issues papers and received comments from interested parties, including intellectual property professionals and small businesses. An industry reference group consisting of intellectual property professionals and industry representatives was set up to help in the consultations. The review found that the trademarks system was working effectively, but there were some changes that could be made to enhance the system. This bill implements changes to the trademark system arising out of that review.

A strong trademark right is a valuable asset that can help increase recognition of a brand. Registered owners have the exclusive right to use their registered trademark on their goods and services. They can sell or license the trademark.  They can also ask Customs to seize goods coming into Australia if the goods infringe their trademark, to prevent the flow of counterfeit goods.

A strong trademark system provides a benefit to the public. It provides members of the public with assurance that when they buy something, they are buying genuine goods that have the quality they have come to expect from that brand.

The changes made by the bill will improve the trademarks system in a number of ways. The bill will strengthen trademark rights, providing greater certainty to trademark owners and the general public. The bill includes provisions that will reduce the regulatory and administrative burden on the users of the system. It will also increase the transparency of the trademark system, and increase alignment of the trademark system with other intellectual property rights.

The government is committed to encouraging innovation and to providing Australia with a strong trademark system that meets the needs of all Australians. We are also committed to reducing the regulatory burden on Australian businesses in registering trademarks. This bill reflects those commitments.

Amendments in this bill strengthen trademark rights by enabling trademark owners to more effectively protect their trademark. For example, owners of trademarks with a reputation in Australia can now more readily protect their trademarks against registration of other trademarks whose use is likely to lead to confusion in the marketplace.

A trademark can be opposed by members of the public if it will affect their business or they believe the trade mark should not be registered. Amendments in this bill will clarify the basis on which an opposition may be taken, and allow a trade mark to be opposed because it was made in bad faith. This will increase the strength of registered trademarks and help weed out bad ones.

Over half of the trademark applications are filed directly by the owner of the business. Many of these are small and medium sized enterprises. These smaller businesses can be greatly affected by the burden of regulation and administration in the trademark system. It is our policy to reduce this burden wherever possible.

Amendments in this bill reduce the administrative and regulatory burden on trademark owners in a number of ways. Some of the changes reduce complexity in the system while other changes make it easier for trademark owners to correct their application if they do make a mistake.

Trademark owners will also find it easier to request Customs to seize goods that might infringe their trademark. Notices requesting seizure will stay in effect for longer and trademark owners will be able to provide a written undertaking to repay any expenses incurred by the Commonwealth, instead of paying a cash security up-front as is currently required. Small business owners, in particular, will find it easier to use the trademark system to prevent importation of counterfeit goods.

A trademark is a valuable right and certainty of ownership is necessary for both the owner and also for anyone who may have an interest in the trademark. Amendments set out in this bill increase certainty of ownership of a trademark and increase the public’s certainty that the information on the Register of Trade Marks is correct and up to date.

Amendments in this bill also clarify parts of the Trade Marks Act that have confused trademark owners in the past. By clarifying these requirements, it will make it easier for people to apply for a trademark.

The amendments set out in the bill also increase transparency and alignment with other intellectual property acts. Many businesses hold a number of intellectual property rights. For example they may own a patent for an invention and a trademark for the invention’s proprietary name. It is more convenient for the owner of these rights if there is consistency when seeking patent and trademark protection. The amendments in this bill bring some of the administrative aspects of the trademark system into line with the patents and designs systems.

The bill will result in stronger registered trademark rights and improve the administration of the trademark system.

See this speech in context