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«Principal Editor Professor Brian Fitzgerald Head of School of Law, Queensland University of Technology, Australia With the assistance of Jessica ...»

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Prior to the introduction of a dilution styled provision into Australian trademark law 168 in 1995 the trademark holder would have had to prove that culture jamming created consumer confusion as to the source of goods or services leading to an action for trademark infringement 169 or passing off. 170 Since the enactment of section 120(3) of the Trade Marks Act 1995 (Cth) which provides protection for well known trade marks, which are typically owned by multinational corporations or national companies with a high market share, 171 a registered trade mark will be infringed where a person uses a mark that is the same or deceptively similar to a well known mark as a trade mark (regarding unrelated goods or services) where use of the mark is likely to indicate a connection with the well known mark and thereby adversely affect the interests of the registered owner. 172 Interestingly the Canadian case of Compagnie Generale des Etablissements Michelin “Michelin & Cie” v National Automobile Aeroscope, Transportation and General Workers Union of Canada (CAW-Canada) (T.D.) 173 suggests s 22 of the Canadian Trade Marks Act – a dilution provision broadly similar to the Australian provision - would not be enlivened in parody situations as in such circumstances there is no “use of the mark as a trademark”. 174 In the Michelin Case the NAATGW Union in seeking to recruit workers of the Michelin company depicted the Michelin man or ‘Bibendum’ (a marshmallow rotund figure composed of tyres) on leaflets distributed to workers in a manner so as to suggest he was just about to step on and squash a Michelin worker. The Canadian Court of On this notion see: B Fitzgerald and E Sheehan, “Trademark Dilution and the Commodification of Information: Understanding the “Cultural Command”” (1999) 3 Mac LR 61; TRIPS Art 16.

Sections 120(1) and (2) Trade Marks Act 1995 ; Fitzgerald and Fitzgerald, supra, 369-75; Mattel Inc v NCA Records Inc 296 F 3d 894 at 900 (9th Circ 2002) Cert.

Denied 537 U.S. 1171 (2003); Elvis Presley Enterprises v Capece 141 F 3d 188 (5th Cir 1998).

See generally: Mark Davison, Kate Johnston and Patricia Kennedy, Shanahan’s Australian Law of Trade Marks and Passing Off (3rd ed, 2003) 571; Clark v Associated Newspapers Ltd [1998] 40 IPR 262 at 268.

Fitzgerald and Fitzgerald, supra, 370.

Trade Marks Act 1995 (Cth) s 120(3). To determine whether a mark is well known, it is necessary to consider the ‘extent to which the trade mark is known within the relevant sector of the public, whether as a result of the promotion of the trade mark or for any other reason’: s 120(4).

[1997] 2F.C. 306 See further British Columbia Automobile Assn v Office and Professional Employees International Union Local 378 [2001] B.C.J. No. 151; M Bibic and V Eatrides, “Would Victoria’s Secret Be Protected North of the Border? A Revealing Look at Trade-Mark Infringement and Depreciation of Goodwill in Canada” (2003) 93 The Trademark Reporter 904.

Appeal held that this was not trademark infringement of any kind but was a substantial reproduction of copyright material and therefore an infringement of Canadian copyright law. The Michelin Case would suggest that in Australia in most instances using a trademark for the purpose of parody would not infringe s 120 (3) as it would not be “use of a mark as a trademark.” 175 This would allow some forms of ‘billboard liberation’ but copyright infringement could still be an issue. However as dilution laws aim to protect the value of the well known mark and ridiculing potentially devalues a mark, arguments for infringement will continue to be made and until there is a clear ruling on this issue there can be no certainty that the Canadian approach will be fully adopted in Australia. 176 As well known trademarks become part of our constructed reality and cultural environment one school of thought suggests we should have a broader right to access and utilise them as part of cultural discourse. 177 A number of US cases have considered the issue as to what extent a well known trade mark may be reproduced or re-used as a medium of expression or a part of free culture. In Lucasfilm Ltd v High Frontier, 178 George Lucus unsuccessfully tried to bring an action for trade mark infringement against public interest groups who had labelled Ronald Reagan’s plans for outer-spaced weaponry, ‘Star Wars’. The court held that despite the fact that the original meaning derived from the trade use, courts cannot regulate descriptive non-trade use, without becoming language police. The court further held that trade marks laws are designed to regulate unfair trade competition, not the development of the English language in everyday human discourse. This case can be contrasted with San Francisco Arts & Athletic Inc (SFAA) v US Olympics Committee (USOC), 179 where the US Supreme Court held that SFAA’s promotion of an event called the ‘Gay Olympic Games’ was in breach of the Amateur Sports Act which allowed USOC to prohibit commercial and promotional Fitzgerald and Fitzgerald supra, 372-5; Philmac Pty Ltd v Registrar of Trademarks [2002] FCA 1551; Coca-Cola Co v All-Fect Distributors Ltd [1999] FCA 1721; The Australian Steel Company Operations Pty Ltd v Steel Foundations Ltd [2003] FCA 374.

E Gredley and S Maniatis, “Parody: A Fatal Attraction? Part 2: Trade Mark Parodies” [1997] 8 European Intellectual Property Review 412 at 419-20.

P. Loughlan, Intellectual Property: Creative and Marketing Rights (1998) LBC Information Services, Sydney 168ff.; R. Dreyfuss, ‘Expressive Genericity: Trademarks as Language In the Pepsi Generation’ (1990) 65 Notre Dame Law Review 397; B Fitzgerald and E Sheehan, “Trademark Dilution and the Commodification of Information: Understanding the “Cultural Command” (1999) 3 Mac LR 61.

622 F Supp 931 (1985).

483 US 522 (1987).

use of the word ‘Olympic’. In this instance free speech and cultural discourse reasoning, that the word was now part of the common language, was rejected by the US Supreme Court.

In relation to parody the US courts have tended to allow trademarks to be reproduced on goods and even sold so long as it is a ‘take off’ and not a ‘rip off’. 180 However the introduction of a federal trademark dilution law has brought some uncertainty in the case law as to the legality of parody, yet there seems to be a clear argument that ‘non commercial speech’ (in essence social commentary) involving a mark is protected by the First Amendment and such use will not amount to dilution.181 The critical question will be whether parody devalues the mark? And if the answer is yes, the further question will be whether the parody devalues the mark in its ability to draw consumers or only within a broader social consciousness? 182 In terms of ‘billboard liberation’ which features a political message, it is necessary to consider the implied guarantee to free political speech. The courts have held that there is an implied freedom to communicate on political matters under the Commonwealth Constitution. 183 The implied freedom to communicate on political matters protects individuals against laws that would otherwise restrict this freedom. This body of law may therefore provide a defence to any action against a form of culture jamming which contains a political message.

Nike Inc v “Just Did It” Enterprises 6 F3d 1225, 1227-8 (7th Cir, 1993); The Coca Cola v Co v Gemini Rising Inc 346 F. Supp. 1183 (E.D.N.Y. 1972); Anheuser-Busch

Inc. v L & L Wings Inc 962 F. 2d 316 (4th Cir. 1992); G Mayers “Trademark Parody:

Lessons from The Copyright Decision in Campbell v Acuff-Rose Music Inc” (1996) 60 L & Contemp. Probs. 181.

See Mattel Inc v Walking Mountain Productions 353 F. 3d. 792 (9th Cir 2004);

Mattel Inc v NCA Records Inc 296 F 3d 894 (9th Circ 2002) Cert. Denied 537 U.S.

1171 (2003); Dr Seuss Enterprises v Penguin Books USA 109 F 3d 1394 (9th Cir 1997); E Gredley and S Maniatis, “Parody: A Fatal Attraction? Part 2: Trade Mark Parodies” [1997] 8 European Intellectual Property Review 412.

British Columbia Automobile Assn v Office and Professional Employees International Union Local 378 [2001] B.C.J. No. 151 at [165]-[168]; Mattel Inc v Walking Mountain Productions 353 F. 3d. 792 at 812 (9th Cir 2004); Mattel Inc v NCA Records Inc 296 F 3d 894 at 902-7 (9th Circ 2002) Cert. Denied 537 U.S. 1171 (2003).

Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106; Theophanous v Herald & Weekly Times Ltd (1994) CLR 104; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

It is suggested that a clearer principle needs to be embodied in Australian copyright and trade mark law to allow broader social and cultural use of trademarks and reduce the threat of being sued.

What Does the Future Hold?

Introduction The great dilemma that faces the spirit of social or cultural innovation in Australia is the degree to which the law can respond to iron out these apparent roadblocks. One group – the owners - would feel happy having an enormous power of censorship and control over ‘appropriation’ or at least a statutory licensing scheme providing some remuneration while creatives and social innovators seek to harness the power of ‘remix’ to build out the future. One of the most powerful concepts that has arisen to assist creativity and social innovation is that of the Creative Commons. The CC movement asks copyright owners to consider sharing copyright material where appropriate and for stated purposes and aims to set up a mechanism for clearly articulating such a process of sharing in the Internet world. On the back of this the Australian government has realised that copyright law is too inflexible and has sought to re-examine the way in which certain reuses of copyright material without permission of the copyright owner should be facilitated. CC gives permission in advance and a more flexible fair dealing doctrine morphing into a fair use doctrine would provide a space where creatives and social innovators could harness to ‘some degree’ the existing store of knowledge and culture without permission of the copyright owner. This ability to negotiate copyright material upon the instance of seeing it and to innovate upon it and republish/distribute it provides a dynamic that the digital environment sponsors in a process of creative and social innovation. In terms of trademarks we need to consider reform of the law to more clearly articulate what type of re-use should be allowed.

Creative Commons

In 2004 the Creative Commons (CC) project was launched in Australia:

(http://creativecommons.org.au). Creative Commons aims to build a distributed information commons by encouraging copyright owners, where appropriate, to licence use of their material through open content licensing protocols and thereby promote better identification, negotiation and reutilization of content for the purposes of creativity and innovation. It aims to make copyright content more ‘active’ by ensuring that content can be reutilized with a minimum of transactional effort. As the project highlights, the use of an effective identification or labeling scheme and an easy to understand and implement legal framework is vital to furthering this purpose. This is done by establishing generic protocols or license terms for the open distribution of content that can be attached to content with a minimum of fuss under a CC label. In short the idea is to ask copyright owners – where willing - to ‘license out’ or distribute their material on the basis of four protocols designed to enhance reusability and build out the information commons. 184 Through the Creative Commons licences a copyright owner of content, be it text, music or film, can place that material in the commons. These base licences have been ‘ported’ or adapted to Australian law as they have in a number of other countries throughout the world. 185 The CC licences provide that anyone can use the content subject to one or a number of the

following conditions 186 :

• attribution of the author;

• non-commercial distribution;

• that no derivative materials based on the licensed material are made (i.e. all copies are verbatim); and

• share and share alike (others may distribute derivative materials based on the licensed material under a licence identical to that which covers the licensed material).

It is also important to point out that moral rights are asserted under the core terms of the current Australian version of the CC licence. While this presents a challenge for remix culture it is anticipated that further options regarding moral rights will be presented in future versions. 187 On the key motivations for sharing content see: B Fitzgerald ‘Structuring Knowledge Through Open Access: The Creative Commons Story’ in C Kapitzke and B Bruce (eds.) New Libraries and Knowledge Spaces: Critical Perspectives on Information Education (2005) Lawrence Erlbaum and Assoc.

http://creativecommons.org/international http://creativecommons.org.au All of the conditions are presented as options which the licensor may choose, except for the attribution condition which is now a default condition in each Creative Commons licence.

B Fitzgerald, “Creative Commons (CC): Accessing, Negotiating and Remixing Online Content”, in J. Servaes and P. Thomas (eds), Communications, Intellectual Property and the Public Domain in the Asia Pacific Region: Contestants and Consensus (forthcoming 2006) Sage New Delhi.

The licence can be presented in common, legal or digital code language – by simply going to creativecommons.org and choosing a licence online.

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