Trade Mark and Counterfeit Litigation in Australia

31 Pages Posted: 7 Feb 2007

See all articles by Jason John Bosland

Jason John Bosland

University of Melbourne; University of Melbourne - Centre for Media and Communications Law

Kimberlee G. Weatherall

The University of Sydney Law School

Paul H. Jensen

University of Melbourne - Melbourne Institute of Applied Economic and Social Research

Abstract

The effectiveness of trade mark protection depends on the enforceability of rights. However, little is known about how trade mark owners actually go about enforcing their trade marks in the civil courts. The few studies which have emerged recently show a high success rate for trade mark owners. In this study, we created a database of all trade mark enforcement decisions of Australian courts for the period 1997-2003. Analysing the nature and outcomes of the trade mark litigation, we found a more complex story than previous studies: counterfeit proceedings where the trade mark owner always wins and the alleged infringer often fails to show up in court on the one hand; more contentious proceedings on the other where the trade mark owner only succeeded around a third of the time. The study raises, although it cannot answer, some interesting questions about trade mark owner knowledge and motivations in entering litigation.

Keywords: trade mark, litigation, Australia, counterfeit

JEL Classification: K11

Suggested Citation

Bosland, Jason John and Weatherall, Kimberlee Gai and Jensen, Paul H., Trade Mark and Counterfeit Litigation in Australia. Intellectual Property Quarterly, Vol. 4, p. 347, 2006, U of Melbourne Legal Studies Research Paper No. 208, University of Queensland TC Beirne School of Law Research Paper No. 10-06, Available at SSRN: https://ssrn.com/abstract=961527

Jason John Bosland (Contact Author)

University of Melbourne ( email )

185 Pelham Street
Carlton, Victoria 3053
Australia

University of Melbourne - Centre for Media and Communications Law ( email )

Victoria 3010
Australia

Kimberlee Gai Weatherall

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

Paul H. Jensen

University of Melbourne - Melbourne Institute of Applied Economic and Social Research ( email )

Level 5, FBE Building, 111 Barry Street
Parkville, Victoria 3010
Australia

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