AVIS DE DROIT PROTECTION DES SIGNES NATIONAUX

AUSTRALIE
(ii) National Insignia Used as Company or Business Names
Certain words may not be included in the registered names of Australian companies ;
Corporations Act 2001, subpara. 147(1)(c) and Corporations Regulations 2001, reg.
2B.6.01(2) in conjunction with Parts 2 and 3 of Schedule 6. The non-exhaustive list
unacceptable names includes, from the point of view of national insignia, the term “Made in
Australia”. Any phrase or abbreviation having the same or a similar meaning would also be
unacceptable. Schedule 6 also generically describes a number of categories of names which
may not be registered: those suggesting a connection with an Australian federal, state or local
government or with the government of any foreign country; those suggesting a connection
with the royal family or the receipt of royal patronage; those suggesting that the members of
the company are ex-servicemen or physically or mentally handicapped persons; those
suggesting a connection with Australia’s most famous sportsman, Sir Donald Bradman (!).
However, such names may be registered if the suggested connections really exist. Even more
significantly, there are no restrictions on using names suggesting geographical or national
connections to Australia or any foreign country and it is specified that the words “federal” and
“Commonwealth” may form part of registered company names if they are used so as to
indicate geographical connection, rather than a governmental connection.
Those restrictions are largely mirrored in the rules governing registration of the names of
unincorporated businesses in Australia. These rules are made under legislation enacted by
each of the Australian States and Territories (for example, the Business Names Act 2002 of
New South Wales) in largely uniform terms. There are nevertheless some variations. For
example, the proclamation made 406 by the New South Welsh Minister for Fair Trading
prohibits any business name “capable of suggesting connection with the government of a
foreign country”, regardless of whether such a connection actually exists! On the other hand,
that proclamation also contains a general prohibition of business names “which are
misleading in relation to the nature, objects or purposes of the business carried on or to be
carried on under those names”. That general prohibition would presumably cover names
which contain false indications of national or geographical connection.
(iii) Other Commercial Use of National Insignia
The Trade Practices Act prohibits the making of deceptive statements in relation to the sale of
goods and services. Sec. 52 has since 1974 generally prohibited trading or commercial
conduct “that is misleading or deceptive or is likely to mislead or deceive”. That provision
was held to cover cases where the national or geographical origins of goods were clearly
misrepresented 407 . The Act was amended in 1986 to put this beyond doubt. Para. 53(eb) now
prohibits the making of “false or misleading representation[s] concerning the place of origin
of goods”. Difficulties have often arisen however, in determining the exact geographical
origins of particular goods 408 . The Act was therefore further amended in 1998 to provide
objectively applicable rules for determining the geographical origins of goods. These rules
now appear in secs. 65AA to 65AN of the Trade Practices Act. They differentiate between
406
On pages 1423 and 1424 of the New South Wales Government Gazette of 15 April 2005.
407
Refer to Braemar Appliances Pty. Ltd. v. Rank Electronic Housewares Pty. Ltd, (1983) 78 Federal
Law Reports 446.
408
Refer to the jurisprudence cited in Miller, R.V, Miller’s Annotated Trade Practices Act (Pyrmont,
NSW, 21st ed, 2000), para. [1.53.60].
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