Sunday, April 30, 2017

Trade Marks and Building Names

The Federal Court recently decided in favour of the onsite manager against an offsite real estate agent in relation to use by the offsite agent of a trademark used by the onsite manager.  The trademark was the same as the building name, but this did not allow the offset real estate agent to use the building name as a trademark.

Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd 
[2017] FCAFC 56

"243    In our view, the underlying principle reflected in the reasoning quoted above applies to the circumstances of the present case. Apartment owners enjoy the right to describe the location of their apartment by reference to the words “Harbour Lights” and they enjoy the right to let their apartment so described at that place.  Neither they, nor any third parties, enjoy the right to provide the registered services from the building or from any other place by reference to the words “Harbour Lights” based on any notion of invoking, in good faith, the use of the words on the footing that, because the complex is called “Harbour Lights”, the words form part of the common heritage in the nature of a town, suburb or municipality. 
244    The words are, of course, the name of a particular building complex configured in the way earlier described and thus the words necessarily identify (like all names attached to a particular building) a place on the planet as distinct from other places but that does not mean that the words thus become part of the “common heritage” giving rise to a “likelihood” that other traders would want to make honest use of the words in connection with similar services as an expression of the exercise of a “common right of the public”. The primary judge correctly concluded that the trade mark is inherently adapted to distinguish the designated services of the owner from the services of others."

Wednesday, April 26, 2017

Body Corporates in Queensland can't prevent AirBNB in their buildings

This recent decision confirms previous decisions that a bylaw in a Queensland strata titled scheme that prevents short term rentals, such as AirBNB, is invalid.  Not a great result for apartment residents.
See  Macleay Tower & Villas [2017] QBCCMCmr 12 (17 January 2017)