Ken Wyatt (Hasluck, Liberal Party) Share this | Link to this | Hansard source

  Some months ago I was approached by one of my constituents, Mr Mike Smith, who has a small business that manufactures welding ovens. Mr Smith has been in business for himself for 20 years and during that time has established a highly respected, Australia-wide reputation for designing and manufacturing high-quality welding ovens. As Mike explained to me, over the years he has built up an extensive client base that recognised his distinctively shaped ovens and would choose to order Smithweld ovens because they were considered one of the best, if not the best, welding ovens available. This is a fantastic achievement for Mike and a local West Australian business and they should be commended because they have used this success to give back to the community by teaching young people their trade.

Mike and his company are one of two welding oven manufacturers in Australia, and the only manufacturers to provide an entire range of different welding ovens with a distinctive round shape. This round shape was one that Mike designed himself and has spent many years perfecting. It is a shape that includes both functional and style elements that has become synonymous with the Smithweld Ovens brand. In fact, there are no other Australian made products even vaguely close to his product.

With nearly 20 years of history and evidence in the design of these ovens, it would appear logical that Mike would be able to achieve trade mark registration to protect these designs and the intellectual property they represent. However, when Mike approached me as his federal member, he was at the end of his tether. On trying to achieve trade mark registration for his two ovens, his claims had been rejected. This means that, although Mike was clearly the author and inventor of his particular shape and type of welding oven, there would be no protection within Australia for his design. Mike was without power to prevent others from creating 'knock-off' products. All of Mike's intricate designs of his products, which are required for trade marking, were uploaded onto the IP Australia website, available worldwide, as is standard practice. Unfortunately, it would appear that an overseas manufacturer then decided to create a copycat product that is being imported into Australia. Mike is powerless to stop this from happening and has paid the price in his own business. In simply trying to protect his intellectual property, Mike had found himself in a situation where his life's work was being devalued by cheap, imported knock-off products. The reputation and respect for Mike's products have suffered under imported products that were being sold under the same name.

Mike's is a very sad story for Australian small business and manufacturing. The problem that Mike has encountered is, I believe, a serious one. Mike's products were denied trade marking registration based on an interpretation of section 41 of the Trade Marks Act 1995. It would seem that, although ample evidence had been provided to meet all conditions for registration, the decision was made without much consideration for much of the evidence provided. When speaking to me, Mike relayed this: 'It is concerning as their interpretation discriminates against Australian registered companies who have done the hard yards in designing a product over many years and can prove they were the original designers and builders of a product. … Overseas companies not registered in Australia seem to have been given equal if not greater rights in terms of intellectual property … we would at least expect a level playing field.'

I do not believe that Mike's request for an even playing field is unreasonable. I worry that Mr Smith's is not the only Australian business that has fallen victim to this loophole within Australian intellectual property law that allows section 41 of the act to be interpreted so loosely. I worry that other Australian businesses may also have had their intellectual property left unprotected due to the inability of this section of the act to fully grasp the minutiae of innovative Australian designs. I call on the minister and the House to re-examine the intellectual property law in Australia so that Australian manufacturers and other Australian innovators can have peace of mind that their inventions have the full protection of Australian law. Manufacturing has always played a pivotal role in our economy and Australian manufacturing has been a great innovator.

Australian small business and manufacturing have enough challenges facing them already. Since the start of 2008, and under the stewardship of the former Labor government, more than 140,000 Australian manufacturing jobs have been lost. Thankfully, with the withdrawal of the mining tax and the carbon tax, WA manufacturing is now on a better and more level playing field, but it still needs the protection that is required under the intellectual property act.

House adjourned at 17:00