Trade marks act 1995 regulations for liquids

Full Federal Court limits the registrability of shape as a trade mark

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The Full Federal Court limits the registrability of shape as a trade mark in its decision in the Philips v Remington litigation in Australia. In this case, Koninklijke Philips Electronics NV and Philips Electronics Australia Pty Ltd v Remington Products Australia Pty Ltd, the appellants "Philips" are seeking to prevent the marketing, advertising and packaging by the respondent "Remington" of an electric rotary shaver with three shaving heads arranged in the configuration of an equilateral triangle similar in appearance to Philips' well-known triple headed rotary shaver.

Philips alleged that the Remington triple headed configuration infringed its registered two-dimensional device marks depicted below which were registered for, inter alia, shaving apparatus.

Each trade marks act 1995 regulations for liquids was registered under the previous Trade Marks Act but became registered trade marks for the purposes of the new Trade Marks Act pursuant to that Act's provisions.

The question before the court was whether Remington had infringed Philips' marks by using, in the words of the primary infringement provision of the Act "as a trade mark a sign that is substantially identical with or deceptively similar to the [registered] trade mark in relation to goods… in respect of which the trade mark is registered.

In a decision handed down on 30 June Burchett J, with whom the other two judges agreed, held that Remington had not used the offending marks as a trade mark. This was largely because the message of Remington's triple headed configuration was not one indicating commercial origin but rather one indicating the kind or attributes of the shaver. In his judgment Burchett J considered what is a trade mark under the Act, and in particular the registrability of shape as a trade mark. The Act, unlike the Act, expressly includes "shape" in the definition of what is a registrable mark.

It is difficult to fully understand the impact of Burchett J's judgment which at times appears to merge the issue of whether the shape of a good is registrable as a trade mark for the good with the separate question of whether a particular shape would satisfy the distinctiveness requirements of the Act.

His Honour holds that the previous law succinctly expressed by Windeyer J in in the Smith Kline case that a mark is something distinct from the goods in relation to which it is used or to be used remains the law. Burchett J concludes "that a mark remains something "extra" added to distinguish the products of one trader trade marks act 1995 regulations for liquids those of another…". This is at least partly because of the requirement both under the old and new Act that a goods trade mark be used "upon, or in physical or other relation to, the goods".

This principle adopted trade marks act 1995 regulations for liquids Burchett J clearly limits the ability to register the shape of goods or part of the goods as a trade mark for those goods. It may be that this principle does not limit the registration of the trade marks act 1995 regulations for liquids of a container as a trade mark for beverages, perfumes and other fluids.

The judgment is somewhat equivocal on this point. There is also some suggestion in his judgment that Burchett J is only concerned with shapes that perform a functional purpose. Trade marks act 1995 regulations for liquids his Honour envisages some shapes for goods could be registrable as a trade mark for those goods. More particularly, Burchett J says:. Some special shape of a container for a liquid may, subject to the matters already trade marks act 1995 regulations for liquids, be used as a trade mark, just as the shape of a medallion attached to goods might be so used.

A shape may be applied, as has trade marks act 1995 regulations for liquids said, in relation to goods, perhaps by moulding or impressing, so that it becomes a feature of their shape, though it may be irrelevant to their function. Just as a special word may be coined, a special shape may be created as a badge of origin. The special cases where a shape of the goods may be a mark are cases falling within, not without, the principle he expounded. For they are cases where the shape that is a mark is "extra", added to the inherent form of the particular goods as something distinct which can denote origin.

The goods can still be seen as having, in Windeyer J's words, 'an existence independently of the mark' which is imposed upon them. Therefore, when appropriate, consideration should continue to be given to registering in Australia the shape of the whole or part of a good as a trade mark for that good.

Also the above issues relating to the definition of a trade mark, the registrability of shapes as trade marks, and the infringement of shape trade marks may be considered by the High Court of Australia as an application for special leave to appeal to this court on this part of the Full Federal Court's judgment has been made. Philips' actions based on registered design infringement and misleading and deceptive conduct also failed. IP Articles Trade Marks.

Awarding costs in the Federal Court: Does the winner take all? Return to IP News.

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This is the original version as it was originally made. This item of legislation is currently only available in its original format.

Citation, commencement, interpretation and revocation. Purposes of use for trade. Principles of construction and marking of equipment. Marking of name of manufacturer. Buyer of fuel to have view of measuring operation etc. Manner of use for trade. Testing to be carried out under working conditions.

Equipment tested to be complete. Testing of measuring equipment. Equipment fitted with a hose. Provision of test liquid. Opening of tanks etc. Closing of tanks etc. Prescribed limits of error. Passing as fit for use for trade. Stamp to be on sealing plug etc. Manner of obliteration of stamps. Deemed obliteration of stamps. Lawful use for trade of equipment where stamps destroyed, obliterated or defaced—adjustment of price computing device. Lawful use for trade of equipment where stamps destroyed, obliterated or defaced—adaptation for metric quantities.

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Plain View Print Options. Latest available Revised Original As made. Citation, commencement, interpretation and revocation 2. Principles of construction and marking of equipment 5. Marking of name of manufacturer 6. Markings on Equipment 8. Buyer of fuel to have view of measuring operation etc 9.

Testing to be carried out under working conditions Equipment tested to be complete Testing of measuring equipment Equipment fitted with a hose Provision of test liquid Opening of tanks etc Closing of tanks etc Prescribed limits of error Stamp to be on sealing plug etc Misleading marks etc Manner of obliteration of stamps Obliteration of stamps Deemed obliteration of stamps Lawful use for trade of equipment where stamps destroyed, obliterated or defaced—adjustment of price computing device Legislation is available in different versions: Opening Options Different options to open legislation in order to view more content on screen at once.

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