Repeal of s 51(3)

The bill repealing (amongst other things) s 51(3) of the Competition and Consumer Act did get passed and has received royal assent.

The repeal takes effect on 13 September 2019.

So, if you thought you were relying on s 51(3)’s protection, you have a bit less than 6 months to get your house in order.

Your licences and assignments of IP rights probably will not get you into trouble for the most part unless you have market power. But that is not exactly a hard and fast rule so you should discuss your arrangements with your lawyers ASAP.

As discussed in this post, one area of potentially significant concern is where the IP holder has its own retail outlets and also licenses other retail outlets – e.g. not uncommon for franchisors who have their own outlets and franchisees. There is a concern that may give rise to criminal cartel conduct.

If you want to know about the prohibitions on cartel conduct, Ian Wylie has published a paper “Cartel conduct or Permissible Joint Venture?

On Tuesday, the ACCC also announced it hopes to publish draft guidelines by “mid-2019” and finalise them before 13 September. Amongst other things, these proposed guidelines will outline:

how the ACCC proposes to investigate and enforce Part IV in relation to conduct involving intellectual property rights. They will also provide hypothetical examples to illustrate conduct that the ACCC considers is likely or unlikely to contravene Part IV.

Trade Mark 2,000,000

IP Australia has published details of Trade Mark No. 2,000,000:

Trade Mark No. 2000000

I am not sure whether the sequence has been unbroken right from Trade Mark No. 1. Even so, the meter has ticked over and it is definitely a milestone of sorts.

It does seem a little strange, in these days of tobacco plain packaging laws, that someone is pursuing a trade mark registration for a new brand, but it does also extend to smoker’s articles and e-cigs.

By way of interest, Trade Mark No. 1,000,000 was filed by Anchor Foods on 23 April 2004.

That is, it took almost 100 years to get to the 1,000,000 mark; but it took only 15 years for the next million.

I wonder whether “Northern Lights” will achieve the same degree of notoriety as the equally colourful “Golden Lights“.

Lid dip: Dave Stewart

ps. Trade Mark No 1 is still there and, all right, it was only filed on 2 July 1906 so strictly speaking it took just under 98 years to clock up 1 million.