Sunday, 20 January 2013

Parallel imports: consent under Australian law

In Australia, the Full Federal Court has confirmed the trend of recent decisions by reading restrictively the defence of "consent" available to the importers of grey or parallel goods (Paul's Retail Pty Ltd v Lonsdale Australia Limited [2012] FCAFC 130). There is a note of the case here courtesy of Clayton Utz.

Section 123 of the Australian Trade Marks Act is a statutory embodiment of the well established principle in the United Kingdom case, Champagne Heidsieck [1930] 1 Ch 330, which stated that trade marks were badges of origin, designating a genuine source, not badges of control. Just as in modern EU parallel import cases, the important question is whether the goods have been put into circulation by or with the consent of the trade mark owner.

In this case, Lonsdale Australia was a mere licensee, and the principle of implied consent when dealing with related companies had not been definitively accepted into Australian law for the purposes of parallel importation. The Australian licensee was not on the evidence linked to the goods and there was no evidence to suggest that it played any role in the application of the trade marks to any of the imported goods. The Full Court held that it was not necessary to decide the issues considered by the trial judge, because even if Paul's Retail could establish that Lonsdale Australia was bound by its related company's consent, the evidence showed that there was in fact no consent by that related company. But it's interesting to know that those abstruse arguments in which our courts have been obliged to involve themselves are just as important on the other side of the world.

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