LAW20011-Australian Consumer Law Report Writing – Law Assignment Help

Assignment Task


Part A:

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After the successful registration of the Milk Bar logo Trade Mark Number: 2300452, Status: Registered/Protected), Milk Bar’s marketing manager, Logan Cale, recently called a meeting with Max and Cynthia. He alerted them to a market competitor that he argues is using a strikingly similar trade mark to Milk Bar. Logan did some preliminary market research on the business and sent a copy of the trade mark, which can be found below (Figure 1). Max and Cynthia have requested our assistance in the matter.

The firm has also investigated and taken some photographs of the business, illustrating how the logo is being used in the marketplace. From our initial investigations, the logo appears to be used by Milk Bottle (Australia) Pty Ltd. The company is running a café and ice creamery in Carlton. An image of the storefront can be found below (Figure 2). On its website, the business emphasises its use of organic dairy milk in its goods free from chemicals, pesticides, hormones and antibiotics.

Milk Bottle (Australia) Pty Ltd not only offers food and beverage services at its store in Carlton but also sells tubs of flavoured ice cream (Figure 3), cookies (Figures 4) and cake products (Figure 5). All the products bear the logo and are sold within their Carlton store and online. 

Logan also did his own investigations and talked to fellow marketing professionals. One of Logan’s contacts who worked on the logo for Milk Bottle (Australia) Pty Ltd said the owners were inspired by the Milk Bar logo. Max and Cynthia are concerned that the business is infringing their recently registered trade mark (Trade Mark Number: 2300452, Status: Registered/Protected). A copy of this trade mark can be found below.

Your Practice Manager has come to you for your advice on this matter. Please prepare a memorandum of advice to address whether Milk Bar Pty Ltd can seek any remedies and, in particular, whether it can rely on:

(a) An action for passing off and breach of section 18 of the Australian Consumer Law.
(b) Actions under the Trade Marks Act 1995 (Cth).
(c) What defences or cross-claims are available to Milk Bottle (Australia) Pty Ltd.

Give your advice citing relevant sections of the Trade Marks Act 1995 (Cth) and relevant case law.

Customers have even purchased limited edition t-shirts and other merchandise, including toy figurines of Mylkie. The estimated revenue received related to this character is well over $150,000. 

After expanding into Australian supermarkets, customers can now purchase the ‘Mylkie’ items online. Given the character’s success, Max and Cynthia intend to permanently sell ‘Mylkie’ t-shirts, mugs and toys on their website. Milk Bar’s marketing manager Logan has advised the Trade Mark Practice Group that the popularity of Mylkie has led to imitations online. One, in particular, has drawn the attention of Max and Cynthia. Manticore Pty Ltd has been selling merchandise bearing the following character. Examples of items sold by Manticore Pty Ltd.

Upon further investigation, the Trade Mark Practice Group has also identified that Manticore Pty Ltd has applied to register a trade mark for its character (number 2330123). A copy of the application from the Australian Trade Mark Search System can be found below.

Max and Cynthia are concerned about this competitor’s behaviour and want to know what we can do for them.

Note: No trade mark application for the Mylkie cartoon character has been filed with IP Australia.

Your Practice Manager has come to you for your advice on the above situation. Please prepare a memorandum of advice to the Practice Manager, including the following:

(a) Whether there is an action available under passing off, the Australian Consumer Law, or trade mark infringement under the Trade Marks Act 1995 (Cth) against Manticore Pty Ltd.

(b) Whether Milk Bar Pty Ltd can oppose the trade mark application (number 2330123, a copy of which is below). In particular, when the application can be opposed, the possible grounds for opposition available to Milk Bar Pty Ltd and their chances of success.

(c) Whether Mylkie could be protected with a registered trade mark. Discuss the potential trade mark applications Milk Bar Pty Ltd could file (including which goods and services they would cover and how much it would cost to file with IP Australia) and the overall registrability of the trade mark(s).

(d) An initial trade mark search report using the Australian Trade Mark Search System. The report should set out any possible similar/conflicting trade marks with regards to your suggested trade mark applications. For the search report, please include your search list, which shows the list of potentially conflicting marks, the types of searches you conducted, and the keywords used (also known as ‘My Searches’ in the Australian Trade Mark Search System). Please attach the PDF search report to your response.

(e) Any other matters you consider appropriate. Give your advice by citing relevant sections of the Trade Marks Act 1995 (Cth) and relevant case law

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