- Exams must be undertaken individually.
- Exam papers must be typed and in Microsoft Word format, not PDF (this is to enable individual feedback to be provided).
- Exam papers must contain a bibliography and conform with the Australian Guide to Legal Citation and Canberra Law Review Style Guide (ie. must use footnoting).
- Refer to the Unit Outline for the assessment criteria, late policy, and the University of Canberra assessment policies for academic integrity guidance. Plagiarism and other forms of cheating will not be tolerated.
- All questions must be answered, to a maximum of 1800 words in total (not +10%). Footnote references are excluded from the word count. The individual marks for each question are indicated below, and students should use this as a guide for how many words to dedicate to each question.
- Read the questions and facts carefully! Only address the questions you have been asked.
Fact scenario:
The decision of the judge to declare a mistrial following Senator Sam Sopabox’s letter to the editor was great news to Dr Emily Bird. After it became public knowledge that the steroids she was giving her emus could cure cancer, there was a lot of interest in the emu business that she solely owned and operated, Emus 4 You. People thought that if they ate the emu eggs, they would be better protected from diseases. People were also very curious about the content of the steroids, but Emily was careful to secure the recipe in her filing cabinet. Only she knew the combination to the lock. At some point in the future, when she had the time, she intended to apply for a patent.
But while egg sales were booming, Emily was disappointed that the transportation side of her business had stalled. It seemed that Mr Ed Consulting was the flavour of the month for animal transportation, after it was successful in winning the Government’s contract for the Canberra to Sydney horse and carriage project. Emily decides that her business needs to be re-launched with a brand new logo. She engages Karen Copy, a freelance advertiser, to develop a new logo for Emus 4 You.
Karen decides to do some market research before she puts pen to paper. While googling transportation businesses, she comes across the website for Mr Ed Consulting. The website contains the following logo, with a note saying that the logo is registered as a trade mark under the Trade Mark Act 1995 (Cth) under the class ‘transportation services’:
Karen quite likes the logo, and figures that if it works for a horse business, it would probably work for an emu business too. She works on a few different designs, and finally settles on the following:
Karen presents the new Emus for You logo to Emily, who loves it. Emily files an application to register the logo as a trade mark with the Trade Marks Office under the class ‘animal breeder’. The Registrar of Trade Marks is prima facie satisfied that the logo meets the section 17 definition of a trade mark, and that the requirements of section 27 are met, so accepts Emily’s application. The Registrar then publishes the logo to give others three months to oppose its registration as a trade mark, as per the usual process.
In the meantime, Karen thinks it’s a good idea to publish some big ‘teaser’ advertisements before the new logo is official released. She purchases a half page advertisement in the travel section of the Sunday Times and arranges the following to be published:
Emily also prepares a ‘Fact Sheet’ on the use of her emus in transportation. She wants to instil in her readers that emus are better than horses, and while she is not really sure that emus are faster than horses, she figures the steroids will probably increase their performance anyway. She puts the Fact Sheet on the Emus 4 You website. It contains the following paragraph:
Emus are far better animals to use in the transportation of goods and passengers compared to horses. Their longer legs and need for less water means that they are definitely much quicker and require less breaks. It’s a bit like Australian sprinters vs New Zealand sprinters – the latter are much slower, untrustworthy and less reliable than the former. Choosing Emus 4 You means that you will get to your destination faster.
The press release was a big success, with over 100 people hiring Emus 4 You by the end of the week.
Questions:
- Would Mr Ed Consulting have any grounds for opposing Emily’s registration of the new Emus 4 You logo under the Trade Marks Act 1995 (Cth)? In your answer, discuss two relevant grounds (6 marks)
- Assuming that Karen is a member of the Australian Association of National Advertisers (AANA), has she breached the AANA Code of Ethics? In your answer, discuss two relevant sections of the Code. (5 marks)
- Has Emily committed an unlawful act under section 18C of the Racial Discrimination Act 1975 (Cth)? In your answer, discuss whether any exemptions in section 18D apply. (8 marks)
- Has Emily breached section 18 of the Australian Consumer Law? (6 marks)
- If a member of the public submitted a request to Emus 4 You under section 11 of the Freedom of Information Act 1982 (Cth) for access to the documents detailing the recipe for the steroids Emily gives her emus, would Emus 4 You have to grant access? Why / why not? (2 marks)
**An additional 3 marks will be allocated for presentation,
including appropriate footnoting, a bibliography and a completed coversheet**
