RE: Australian trade mark question

You are correct. Yeast-Vite was followed in Australia - See Caterpillar Loader Hire (Holdings) P/L -v- Caterpillar Tractor Co (1983) which has a good discussion of the Yeast-vite case. It should be available from www.austlii.edu.au

Cheers,
Michael do Rozario

-----Original Message-----
From: Norman Siebrasse [mailto:siebrass[_at_]unb.ca] Sent: Friday, December 15, 2000 12:17 AM To: Multiple recipients of list
Subject: Australian trade mark question

I hope a trade mark question isn't too far outside the scope of this list. I have some questions about Australian trade mark law.

The Australian Trade Marks Act 1995 s.122(1)(d) provides that it is not an infringment to use a trade mark in comparative advertising. As best I can tell, this provision was introduced for the first time in the 1995 Act. (Is this correct?) My question is, did this section represent a change in the law, or was it simply for the purpose of affirming existing law? My understanding is that even prior to the enactment of this provision use of a mark in comparative advertising would _not_ have been considered an infringment, since the Australian courts followed the UK decision in Irving Yeast-Vite v Horsenail (1934) 51 RPC 110 holding that use of the mark in comparative advertising was not use of the mark "as a trade mark."  Is this correct?

Thanks

Norman Siebrasse
Faculty of Law
University of New Brunswick
http://www.unb.ca/law/Siebrasse Received on Mon Dec 18 2000 - 06:34:06 GMT