Commonwealth of Australia Explanatory Memoranda

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TRADE MARKS AMENDMENT (ICONIC SYMBOLS OF NATIONAL IDENTITY) BILL 2015

                         2013 - 2014 - 2015




     THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




                    HOUSE OF REPRESENTATIVES




Trade Marks Amendment (Iconic Symbols of National Identity) Bill 2015




                   EXPLANATORY MEMORANDUM
                                 and
        STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS




                      Circulated by authority of
                         Hon Bob Katter MP
                  Trade Marks Amendment (Iconic Symbols of National Identity) Bill 2015


                                                    OUTLINE

The Trade Marks Act 1995 provides for the registration of trade marks and sets out and protects the rights
deriving from registration. A trade mark is a sign used in the course of trade to distinguish goods or
services.

The amendments contained in this Bill will prohibit the registration of trade marks which consist of a sign
which is of national significance or iconic value to the people of Australia. This will ensure that any such
signs are able to be used and enjoyed by all Australians without restriction.

It will also ensure that any trade marks that currently purport to restrict the use of a sign of national
significance will be removed from the register of trade marks.

A sign of national significance or iconic value to the people of Australia is not a right that can or should be
appropriated by any legal entity, personal or corporate.


                                              FINANCIAL IMPACT
It is not expected that the proposed Bill will have any significant financial impact. There will be no
additional cost to the Government of administering this legislation, and the cost recovery nature of
operation of the Trade Marks Office will be maintained.


                           STATEMENT ON COMPATIBILITY WITH HUMAN RIGHTS

The Statement of Compatibility with Human Rights appears at the end of this Explanatory Memorandum.


                                              NOTES ON CLAUSES
Clause 1 - Short title
This clause provides for the Act, when enacted, to be cited as the Trade Marks Amendment (Iconic Symbols
of National Identity) Act 2015.

Clause 2 - Commencement
This clause provides for the Act to commence on the day after it receives Royal Assent.

Clause 3 -- Schedule
This clause provides for the amendment of the Trade Marks Act 1995 in accordance with the items set out
in the Schedule.

Schedule 1 -- Amendments

Trade Marks Act 1995

Item 1 -- Section 39(1)

This item inserts a sub-section (1A) that provides that an application for the registration of a trade mark
must be rejected if the trade mark consists of a sign that is of national significance, or iconic value, to the
people of Australia.
"Sign" is defined in subsection 6(1) of the Act to include "the following or any combination of the following,
namely, any letter, word, name, signature, numeral, device, brand, heading, label, ticket, aspect of
packaging, shape, colour, sound or scent".

Item 2 - Subparagraph 39(2)(b)(ii)

This item provides that an application for the registration of a trade mark may be rejected if the sign so
closely resembles or is likely to be taken for a sign that consists of a sign that is of national significance, or
iconic value, to the people of Australia.

Item 3 - After section 84A

This item inserts a new section 84AA into the Act that provides that the Registrar must revoke any trade
mark, already registered, which consists of a sign that is of national significance, or iconic value, to the
people of Australia.

The item provides that any person aggrieved by the proposed revocation be given notice and have an
opportunity to be heard in respect of the proposed revocation of the trade mark.

Item 4 - Subsection 84C(1)

This item sets out the effect of revocation of registration of a trade mark, including under the new section
84AA.

Item 5 - Section 84D

This item sets out the right of appeal to the Federal Court or the Federal Circuit Court from a decision of the
Registrar to revoke the registration of a trade mark, including under the new section 84AA.

Item 6 - Application of amendments

This item sets out that section 39 as amended will apply to an application for the registration of a trade
mark that is determined on or after the commencement of the Act, whether the application is made
before, at or after commencement of the Act.

This item sets out that section 84AA as inserted will apply in relation to a trade mark whether it is
registered before, at or after commencement of the Act.


                            STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Trade Marks Amendment (Iconic Symbols of National Identity) Bill 2015

This Bill is compatible with the human rights and freedoms recognised or declared in the international
instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

The amendments contained in this Bill will prohibit the registration of trade marks which are of national
significance or iconic value to the people of Australia. They will also ensure that any trade marks that
currently purport to restrict the use of a symbol of national significance will be removed from the register
of trade marks.
This will ensure that any such signs are able to be used and enjoyed by all Australians without restriction.

Human rights implications

This Bill does not unacceptably limit any of the applicable rights or freedoms.

Conclusion

This Bill is compatible with human rights as it does not raise any human rights issues.




Hon Bob Katter MP

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