Answer ... The court may grant:
- an injunction to stop further infringement;
- at the option of the trademark owner, either damages or an account of profits; and
- additional damages having regard to flagrancy, misconduct and deterrence.
Answer ... There is no official right in relation to trademark dilution per se in Australia. However, owners of famous marks in Australia may have the right to oppose third-party applications for similar marks even when their own famous mark is not registered in Australia.
Answer ... Not specifically, other than by redress through claims for damages.
Answer ... Typically, first by way of a cease and desist letter and then, if that is unsuccessful, by instituting court proceedings in various courts in Australia.
Answer ... Various defences include:
- disputed substantial identity or deceptive similarity;
- disputed use in respect of the applicable goods and services;
- use in good faith of a person’s own name or place of business;
- use in good faith to indicate the kind, quality, quantity, intended purpose, value, geographic origin or some other characteristic of the goods or services;
- use for the purposes of comparative advertising;
- prior rights to the trademark such that the defendant’s mark is capable of registration;
- non-use of the plaintiff’s trademark;
- invalidity of the plaintiff’s trademark; and
- parallel importation of legitimately marked goods where reasonable enquiries as to goods have been made (see question 11.1).
Answer ... Appeal to the applicable appeal court (eg, from the Federal Court to the Full Court or from the Supreme Court to the Court of Appeal).