LAW20011-Trade Marks and Related Rights Report Writing - Law Assignment Help

Assignment Task

Task

Part A:

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. In your answer, indicate any further information you may require and provide corresponding reasons.

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