CHOICE membership

Trademark Applications


#81

It isn’t quite as easy as this. If it is assumed that the copyright owner agrees to sell/transfer the copyright to a public organisation for unfettered use, then compensation would need to be paid to the copyright holder and anyone who has a licence or agreement for its commercial use. The waters would be muddied as some businesses which may have commercial rights may claim that this agreement leads to the profitability of their business and the claims could be potentially very expensive.

Also, not everyone has a price. There are many people (a small percentage of the population) which don’t have a price which they are willing to sell property. This could be due to a range of different reasons including emotional/sentimental /religious attachment. This is why all levels of government have compulsory acquisition powers which allows it to still acquire property, when a settlement price or a reasonable price can’t be reached. In working in an organisation which had such powers, a physiologists once explained why some won’t sell and I recall the example of how much would you sell one’s sight (eyes) for. The discussion amongst a group ended up that no-one was willing to sell their sight as even if one did sell for say $1B, one would not enjoy the rewards associated with the proceeds of the sale. While this was not directly about owned property like copyright (and more about live’s enjoyment), it explained the behaviour of why some chose not to sell property at any price.

While running a crowd funded scheme to raise the money may seem admirable, it is unlikely to provide a resolution and may be seen as forcing the hand of the copyrighter…strengthening the copyrighter’s resolve.

It is also appears that it is the copyright owner that wishes to strongly protect his interests…

In 2010 Thomas was involved in a dispute with Google over its intended use of a 12-year-old Australian girl’s artwork incorporating the Australian Aboriginal Flag into its logo. Thomas refused to allow Google to use the image featuring the flag after negotiations over compensation failed, resulting in a modified design in which the flag was not used. Thomas claimed that Google had opened negotiations with a request for free use of the flag and, while he allowed free use to non-commercial operations that gave health, educational, legal and other assistance to Aboriginal people, he charged a fee to commercial operations. He described Google’s subsequent offer as a “pittance”.

Thomas has since given exclusive commercial rights to three companies, "one to reproduce flags, and the others to reproduce the image on objects and clothing.(https://en.wikipedia.org/wiki/Harold_Thomas_(activist))

The media recently has attacked the licencee of the copyright, blaming the licencee for being zealous in relation to protection of copyright rights. I appears from information available publicly that it in fact could be the copyright holder who has the very strong conviction.

Also, maybe the copyright holder uses any funds raised to improve the living standards/lifestyle enjoyment of the rest of his people. This may or may not be the case would could also affect any decision to acquire.

As there has not been any issue for 24 years and may never be an issue in the future if organisations and individuals abide by the copyright requirements, then they may not be any problem in the future. In some respects, it is a storm in a tea cup created by someone who wants a bit of the profit pie.

The indigenous community may have issue with this as this may allow non-indigenous to also use the flag freely. This may be known and unintended consequences of free use of the flag by all.

With the currently arrangements, there appears to be some control over who has the right for its use.

This is a very good point and wonder why this has not occurred. Maybe the elders are happy with the existing (past 24 year) arrangements can can see no reason to change.

Why elders aren’t adverse to the existing arrangements I don’t know but it could be because their activities and the use of the flag would possible fall into the category of a non-commercial operation…allow their free use of the flag.


#82

I wonder if Harold Thomas and the Indigenous Elders are aware of the conduct of Ben Wooster’s failed company, Birubi Arts Pty Ltd, in regarding to selling fake Indigenous art which was actually made overseas and falsely sold as genuine.

I would have expected that they would prefer to deal with Spark Health, an Indigenous business providing Indigenous healthcare supported by selling genuine Indigenous art through their Clothing The Gap business.

I have not yet seen the decision of the Federal Court in regard to the fine which was due to handed down to Birubi Arts Pty Ltd last Friday, but it will probably be irrelevant as the company is in liquidation and the director has moved on to WAM Clothing.

Interesting, as stated in an SBS News article dated 12.06.2019 which was reproduced from Koori News on 05.06.201, Ben Wooster had already set up Gifts Mate Pty Ltd and a Google search for Birubi Arts Pty Ltd leads to https://australianmade.com.au/licensees/birubiart which has a link to “Birubi Arts Pty Ltd.

http://koorimail.com/

Clicking on the link leads to www.giftsmate.com.au so it appears to be business as usual despite the liquidation.

I’m disgusted.


#83

Good point. I meant this discussion. I’m not planning on making an unsolicited offer. Are you? :slight_smile:

The government has made it so by proclaiming it an official flag.

For the change that I would like to see (avoid this stuff-up in the future) it would require parliament to be in session. I think parliament is not in session, so I wouldn’t expect it to have led to anything as yet even in the most optimistic scenario.

Good point. I realised that. I assumed on no evidence that no copyright owner would be silly enough to sign contracts with no ‘out’ clause e.g. contract has a duration of some number of years after which the copyright owner could exit the contract without penalty.

Yes, it could emerge that the copyright owner is resolutely opposed to sale under any terms, in which case the flag is hopelessly encumbered. You don’t know until you ask.

True but all commercial entities are subject to the ACL and could not use the flag to misrepresent or mislead. In addition the provisions that currently protect the Australian flag could (and should) be extended to protect all official flags.


#84

An article regarding the wonderful, altruistic folks at JUUL applying for more than a dozen trademarks in Australia whilst stating that their mission is to improve the lives of the world’s 1.1 billion smokers.

And another article regarding a teenager who had a hole blasted out of his jaw when an e-cigarette exploded and another person who was killed by one.

With friends like JUUL, who needs enemies?

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#85

Maybe they missed three words…

‘improve their proffits through the lives of the world’s 1.1 billion smokers’


#86

Is this about disputed or misuse of trade marks and the process behind trademarks?

The application by JUUL for trademarks is related to vaping and big tobacco? A warning of a renewed push by the industry.

Amazing, that E-cigs can be turned into mini explosive devices, if unintentionally, by accident? :thinking:


#87

The US DoD is aware! Apparently the remote firing command facility still has some bugs.


#88

I believe you have nailed it.


#89

Sticking to the topic :slight_smile:

Among the pieces of intellectual property the $50 billion company is looking to secure are its logo, its distinctive hexagon-shaped pods and the verb “juuling”.

Doesn’t seem too controversial (as long as the hexagon IP is limited to vaping paraphernalia). I don’t think “juuling” will catch on though as vaping is already an accepted word and “juuling” doesn’t seem as if it offers anything better.

Last week it applied to trademark the phrase “make the switch” – its international campaign slogan and pitch to smokers around the globe.

That seems more controversial. Surely some other company has already used that? A specific example doesn’t come to mind though.


#90

Looks as if the phrase is in common use in marketing products. Just two Aussie examples not obviously trade marked in any way.

https://stratatitle.com.au/make-the-switch/

So just what are they trade marking?
Perhaps the phrase contained within a logo.
It doesn’t seem correct or logical that an everyday expression can be assigned an exclusive use right!


#91

I use the phrase often enough. It is not something I think we could easily trademark here. Might be a bit like Ugg boots here. While it may remain protected here elsewhere it could be trademarked. If it changes I might make the switch to a new country just to be able to keep using it.

https://www.maketheswitchusa.com/

https://www.biolegend.com/en-us/make-the-switch

https://climate.emerson.com/en-us/products/heating-and-air-conditioning/white-rodgers/contractor/maketheswitch

https://aeutas.org.au/make-the-switch/

Used as a title & phrase on this page


#92

Trademark is automatic. If these companies wanted to take Juul to court over it they could give it a go.

Remember in the case of any trademark, it’s only valid if a “reasonable” consumer could be confused by the use of the trademark.


#93

Would that be this one: https://www.abc.net.au/news/2019-06-26/federal-court-imposes-$242.3-million-penalty-on-birubi-art/11247904 ? 2.3 big ones lighter in the pocket?


#94

Yep. That’s it all right.

What a shame they did not also fine the director as well.


#95

Another attempt by a US company to use another nation’s iconic word as a trademark.

It appears that nothing is sacred to the yanks.

I’m surprised it was not trademarked followed by demands that the Japanese cease & desist using it.


#96

An update regarding Spark Health Australia’s petition on Change.org being tabled in the Federal Parliament.

And an article regarding Google threatening a small Newcastle business over his registered business name.

Because everyone is really likely to mistake MacDroids with Android.

What next? Apple also threatening him for using “Mac”?

Disgraceful.

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#97

I’m waiting for this one to bubble to the top? Or is it sink?

“SCOMO”
Can you trademark a nick name?

It appears the term is already in common use, although the current users appear not to have acted to protect the acronym?

Wikipedia have a brief message under the topic header referring users looking for Scott Morrison to search on his proper name. Cute!

Draw your own conclusions as to the features of the SCOMO specifications and any relevance unintended or accidental to Australian Political behaviours.

While not exactly on topic there are also many different interpretations and usage of the acronym SPUD.


#98

I suspect that there is one Australian trademark the US will not be so keen to copy: Coon Cheese. (Then again, the current president and his biggest fans probably wouldn’t see any problem with the name.)

On the subject of the Aboriginal flag, I suspect the issue is more complex than “that’s the flag we as a people have chosen and so it is ours by right”. As @syncretic points out, the designer has certain rights. If they did not sell those rights to the community, then the designer still has the right to control the use of their design for profit.

I am not aware of the circumstances behind Mr Thomas’s decision to issue sole rights to sell the design of the aboriginal flag, but suggest that many of us even when we have enough money to live a reasonable lifestyle would take such an opportunity to earn a bit more in our old age.

If Australia and/or the aboriginal community feels that the commercial rights should be in the public domain (Mr Thomas has made clear that the flag can be used for not-for-profit purposes) then Australia and/or the aboriginal community should front up with a reasonable offer. That is how the current companies got the rights to the (commercial) use of the aboriginal flag.

Is hookah among the terms? (The AFR page is behind a paywall.)


#99

I can’t access the full AFR article now so I can’t answer your question.


#100

Well it isn’t mentioned in the article specifically :slight_smile:

But there is some use of Hookah in TMs see (none are simply that word):

https://search.ipaustralia.gov.au/trademarks/search/quick/result?q=hookah

Interestingly “Make the switch” is also Trademarked but the only one that is registered as simply that phrase (the registered TM is in all caps) is by a company Babawine Pty Ltd, 15-17 Viola Pl, BRISBANE AIRPORT, QLD, 4008, AUSTRALIA. JUUL are making their application using the same all caps phrasing so it may not be successful.

https://search.ipaustralia.gov.au/trademarks/search/result?s=52abc78a-2757-4fa7-b14e-02a2bf972e32