AUSTRALIA’S trademark law, which allows the courts to seize a company’s name if they can prove they infringe on someone else’s, has been criticized as overly broad.
The Federal Government is seeking to use the power of the Federal Court of Australia to take down the trademark of the company, Doxylam Inc, as it pursues trademark infringement cases against the likes of Uber, Airbnb, Instagram and the popular music app Spotify.
It has been accused of using the power to silence criticism of the government, which it said is “exceedingly hostile to the interests of small business owners”.
Under the law, the Federal Government has the power “to institute proceedings against a person for infringement of a trademark or a trade mark of another person”, including the right to seek a court order to seize the trademarks of people who infringe.
“To the extent that it has been used to harass small business, we would urge all Australian businesses to review the effect of the power,” said Opposition Leader Bill Shorten.
The Federal Opposition’s shadow attorney-general, Mark Dreyfus, said he did not see how a court could rule against a company for failing to adequately protect its intellectual property.
“The court could have found that Doxyam’s use of its trademark infringed on Uber and Airbnb,” he said.
Mr Dreyferns said it was unlikely that the power would be used against a small business owner in a case where the business was being accused of infringement.
The use of the trademark power “is a very difficult thing to do because it’s really not in the best interests of any business to use it,” he told ABC Radio’s Insiders program.
“And I think that’s the case in many cases with the use of this power.”
Mr Driesen said the power should be reserved for “businesses which have a legitimate claim to be protected”.
“If a company has done that and has successfully made a defence that they are protected by the trademark law and that’s why they’re there, I think it’s appropriate that the court should have that power,” he added.
“If you’re a small company and you have a claim to the trademark, then you’re entitled to that right.”
I think it would be inappropriate for the Federal government to use this power in this case.
“The Federal Competition and Consumer Commission (FCCC) said the move would not affect its enforcement powers in relation to trademark infringement.”
We’ve seen the Federal Trade Commission in recent months exercise the same power to take action against alleged infringers,” a spokesperson said.”
Our regulatory powers have been broadened to enable us to bring down the barriers to entry and competition in the marketplace.
“As we continue to build a strong online and offline market for content, consumers and businesses, the commission will continue to monitor this and make appropriate regulatory and enforcement decisions when appropriate.”
The spokesman added that the Federal Opposition was seeking to have the Federal Courts’ power to enforce trademark infringement removed.
“Doxyam has a long and storied history of using its trademark to fight against unfair competition in its marketplace and has been a significant force in the Australian music industry for more than 25 years,” the spokesperson said in a statement.
“This action will only strengthen the Federal Commission’s authority to enforce the law and protect consumers from unfair competition.”
Topics:business-economics-and-finance,technology,internet-technology,music-industry,government-and‑politics,australiaFirst posted February 10, 2020 11:33:00Contact Sarah Young