Law: Trade Marks, Freedom of Information and Codes of Ethics

According to the Trade Marks Act of 1995, Mr. Ed Consulting has grounds to contest Emily’s register of the new “Emus 4 You” logo.(Cth). The fact that Emily’s logo is the exact same as Mr. Ed’s company horse trademark is one of the arguments against the register. Before deciding on the trademark to use, Emily did some study and came across Mr. Ed’s trademark, which she found admirable. This demonstrates that she depended on someone else’s work rather than using her own ideas. The only difference is that Emily uses Emu while Mr. Ed uses a horse but other details such as the tick and star resemble one another. Subject to subsections, 3 and 4 application for registration of a trade mark can be rejected if the trade mark of the applicant has substantial semblance with a similar trademark for another company (Trade Marks Act, 1995). In the case study, Emily’s logo is substantially identical with Mr. Ed’s. Mr. Ed Consulting will be within the law to oppose the new logo by Emily by arguing that most of its elements have been borrowed from his company’s logo.

Mr. Ed can also argue that Emily’s logo is deceptive as it gives a message that Emus are faster than horses and can manage long distances. This can ruin his business as clients will abandon the use of horses and go for emus leading to losses. According to the regulations, an application can be rejected if the trade mark deceptively similar to another one that has already been registered (Trade Marks Act, 1995). Emily’s trademark logo resembles that of Mr. Ed and is deceptive since it tells people that Emu is faster than the horse. Trademarks that are likely to deceive and cause confusion to the public are not appropriate. For instance, the connotation of the sign used in the logo may leave consumers with unclear thoughts about a product. In the case study, people may find it difficult to understand how emu can be more convenient to use compared to a horse. Its small size and the fact that it is a bird leaves consumers in a dilemma thus the logo and the advert may mislead them. Mr. Ed can argue that Emily copied his trademark and altered it a little to fit her business activity, which can affect his business greatly.

2. Karen breaches the Australian Association of National Advertisers (AANA) code of conduct when she publishes a big teaser advertisement before they release the new logo for the company “Emus 4 You” owned by Emily. Another grounds that Karen breaches the code by failing to maintain standards and decency according to Section 2 which deals with the portrayal of people of diverse identities (Australian Association of National Advertisers, 2011). This section deals with discrimination against certain groups of people in the society for their geographical region, nationality, ethnic background, and gender among others. Comparing people based on their nationality or age and making one group too look inferior is prohibited under the section. For instance, the last statement of the advert reads “especially slow old folk”. This statement undermines the senior citizens in the society since it lacks courtesy required when addressing the elderly individuals. Again, the advert contains a statement “bloody satisfied” a language that is inappropriate for the prevailing community health standards. Blood is associated with injuries or accidents and some individuals may interpret the statement as denoting some kind of harm or risk. Another ground that Karen breaches the AANA codes is by failing to provide truthful and accurate information in the advert. Section 1 of the AAN guides on truth and accuracy of the message on the advert (Golder and Dixon 3). For instance, “we’d keep you bloody satisfied” is an exaggeration since she cannot accurately argue that emu would give better services compared to horses or any other form of transportation. There is no tangible evidence showing that emu will be faster than other transportation modes such as the horses. People are left with questions about the capability of a bird to provide a more satisfying means of transportation compared to horses. This is misleading to customers and may lead to disappointment to those that may forego utilizing a horse and go for emu. In case, the results are not satisfying, customers may be disappointed with the service rendered. Karen and Emily should have carried out some research before putting up the teaser advertisement on a national newspaper. As a member of AANA Karen is aware of the consequences of giving unreliable information to the public yet she goes ahead to publish the advert.

3. Emily committed an unlawful act under section 18C of the Racial Discrimination Act 1975 (Cth) by mentioning the sprinters vs. New Zealand sprinters and undermining the latter. She argues that the Australian athletes are faster while the New Zealand ones are much slower, untrustworthy, and less reliable than the former. According to the racial discrimination Act, it is unlawful for an individual to engage in an act that involves a distinction, restriction, exclusion, or preference on the basis of race, national or ethnic origin, race, and descent with an aim of impairing recognition all people (Racial Discrimination Act 1975 Cth). The law also prohibits an individual from publishing an advertisement that may indicate an intention to do an act that is unlawful such as discrimination against race, nationality, or gender. In the case study, Emily compares Australian sprinters with those from New Zealand in a manner that belittles the latter. She claims that the former are very fast while the latter are slow, untrustworthy, and unreliable. She discriminates against the New Zealand athletes and uses inappropriate and offensive words to describe them. Arguing that they are untrustworthy is damaging the reputation of New Zealand nationals, which can affect some of citizens residing in Australia. They may face discrimination in other places such as places of work, which can even lead to job losses. She also argues that they are unreliable, a comment that is very inhumane and destructive to peoples’ reputation. She does this intentionally with the aim of comparing her Emu bird with Australian athletes who she considers as good performers in races. Comments that undermine people due to their nationality are discriminative and against the Australian discrimination law.

In section 18D there is no exemption that apply to Emily on actions she takes since the written statement is offensive and targeted to a specific group. Exemptions apply if one says something reasonably in good faith such as a fair comment on an event and if it expresses a genuine belief held by the individual making a comment (Racial Discrimination Act 1975 Cth). In the case of Emily, the comment she makes about New Zealand athletes is not accurate and is not for the public interest. The statement is incorrect since there is no research that proves that athletes from New Zealand are in any way poor in performance compared to others in the world. The purpose of her comment is to make her product famous without caring whether she huts the feelings of others. It is unlawful and discriminative, as it tends to make one team inferior to the others (Bielefeld and Altman 2). The advert will be viewed by many people including the New Zealanders living in Australia and beyond thus may affect their performance in athletics if they feel less confidence. It may also incite other parties such as human rights groups who defend the rights of the minorities in Australia. Such reactions may lead to conflicts between the affected groups ruining their good relationships. Since the comments do not reveal any genuineness, Emily will not be exempted from taking responsibility of going against the discrimination Act rules.

4. Section 18 of the Australian Consumer Law is about misleading or deceptive conduct especially Section 4 that focuses on misleading representations with future matters. For instance, the conduct can mislead the consumers to purchase a certain product instead of buying the one that meets their needs. Consumers should be given accurate information to enable them make decisions that promote their wellbeing (Corones 5). The advert misleads the readers to think that athletes the bird is comparable to sprinters. Since winning athletes are highly respected Emily feels that her animal will also be of great value to the consumers.

According to section 4, an individual should not engage in a conduct, which is liable to mislead the users and public as to the nature, the suitability of purpose, or the quantity of any services (Australian Consumer Law (Cth). Emily’s statement misleads the public by arguing that Emus are better animals for transportation of goods and passengers compared to horses. This is misleading to the public who may be influenced to purchase the bird for transportation thinking that it may provide better services that the horse. This seems like an exaggeration yet some people may take it to be true and invest in emu for transport services. Emily thinks that the steroids will increase the performance of her emus without carrying out a research on the impact they have on their speed. Although the steroids have an impact on health it does not mean that, other aspects such as the speed are also improved. The assumption can be deceptive since the emus may not perform to the customer satisfaction. According to Section 18 of the consumer law deceptive conduct, no one should deceive people that an item is perfect without prove especially in the trade or commerce field (Australian Consumer Law (Cth). Emily’s arguments contradict these provisions since she is not sure whether her services will meet the expectations of her customers.

5. Section 11 gives the right of access to documents such as those of agencies other than exempt documents. The right of individuals to access should not be affected by any reasons one gives for seeking access (Freedom of Information Act 1982 No. 3). Section 11A applies when an individual requests for agency documents and official documents of a minister. One is also required to pay any charges before being allowed access to particular documents. Section 11C allows access to documents except for cases such as if it contains information about business, commercial, and any financial affairs making it unreasonable for publication of information. “Emus 4 You” does not need to give access to documents detailing the recipe for steroids that Emily gives her emus to any member of public that submits a request. Since the document contains crucial information about her business, she is not compelled by the law to publish it. She does not need to grant any access since section 11C does not order publication of documents containing business or commercial information.

Works Cited

Australian Association of National Advertisers (Cth). Australian Law Reform. 2011. https://www.alrc.gov.au/sites/default/files/pdfs/cia_2518_australian_assocation_of_national_advertisers.pdf.

Australian Consumer Law (Cth). Misleading or deceptive conduct. 2010. https://www.australiancontractlaw.com/legislation/cthacl.html

Bielefeld, Shelley, and Jon Altman. “Australia’s First Peoples-Still Struggling for Protection Against Racial Discrimination.” (2015).

Corones, Stephen G. Competition law in Australia. Thomson Reuters Australia, Limited, 2014.

Freedom of Information Act 1982 No. 3, (1982). Federal Register of Legislation. 2017. https://www.legislation.gov.au/Details/C2017C00251

Golder, Tim, and Natasha Dixon. “Online advertising and trade mark use in Australia-where do we stand?.” Journal of Intellectual Property Law & Practice (2017).

Racial Discrimination Act (1975). No. 52, 1975. Federal Register of Legislation. 2016. https://www.legislation.gov.au/Details/C2016C00089+&cd=3&hl=en&ct=clnk&gl=ke&client=firefox-b-ab

Trade Marks Act, 1995. Federal Register of Legislation. 2013. https://www.legislation.gov.au/Details/C2013C00143