She doesn’t know this but the catalyst for this article is Marion Heathcote. Any young female IP lawyer or attorney must surely look up to Marion as a role model, as I do. In an article co-authored* by her recently, it mentioned that she was part of an organisation called IP Outer Borders. Wondering what that was, I looked it up. I came across some slides prepared by the organisation and one of the topics discussed in the slides was trade marks and human rights.

Trade marks and human rights?! That caught my attention.

I had never realised that something which – let’s be frank – has an unparalleled contribution to the bottom line of corporations but doesn’t seem to contribute to humanity in any meaningful way, actually has something to do with something that really matters. Of course, I had heard of the US case of In re Simon Shiao Tam in which it was held that a rejection of a trade mark on the basis that it is scandalous (in accordance with s 2(a) of the Lanham Act) was an unconstitutional abridgement of commercial speech. But, upon conducting an internet search, I discovered that trade marks and human rights is a topic that encompasses more than just this one issue of scandalous marks. Trade marks and human rights is a real ‘thing’, a widely researched and topically discussed thing.

For example, the human rights issues extend to:

  • whether appropriation of trade mark property rights, say through Australia’s plain packaging laws for tobacco, amounts to a violation of the right to property; and
  • whether the adoption and use of trade marks comprising traditional indigenous symbols amounts to a violation of the indigenous peoples’ right to full ownership, control and protection of their cultural and intellectual property.

It has got me thinking about the issues and I have come to the conclusion that there is another possible, as yet unmentioned (in the articles I have read anyway), intersect between trade marks and human rights. That is, the impact of trade marks on the right to an adequate standard of living to ensure health, including access to health care.

There are instances where branding is extremely important to health problems faced by developing nations. For example, to encourage condom use (to prevent the spread of AIDS) it has been found to be vital that condom brands are designed to be appealing. What if a circumstance exists that a particular registered trade mark would appeal to a developing country’s target market, and therefore the use of this trade mark would help combat the health problems faced in that country? Could it be argued that it would be a violation of the human right to an adequate standard of living to ensure health, including access to health care, to prevent the manufacture (in Australia) and export (to the developing country) of a product (being a product that is at least closely related to the goods and services covered by the registration) to which that registered trade mark is applied?

Section 136B of the Patents Act allows for the manufacture (in Australia) and export (to developing countries) of patented products, where it would help combat the health problems faced in those countries. This section states that:

The Federal Court may make an order under this Part requiring the grant of a compulsory licence to exploit a patented pharmaceutical invention for manufacture and export to an eligible importing country.

The court may order a compulsory licence to be granted if the proposed use of the pharmaceutical product is to address a public health issue in the eligible importing country:

       (a)     in a national emergency (or other extremely urgent circumstances); or

       (b)     by the public non-commercial use of the product.

The order may be amended or revoked by another order of the court.

The patentee must be paid an agreed amount of remuneration, or an amount of remuneration determined by the court.

The Trade Marks Act contains no equivalent provision to s 136B of the Patents Act. There is no express authority for the courts to grant a compulsory licence to use of the trade mark in circumstances where it would help to address a public health issue in a developing country.

It may be an opportune time to consider adding such an equivalent provision to the Trade Marks Act. It could easily be included as one of the host of amendments proposed in the 2017 Intellectual Property Laws Amendment Bill. After all, particularly through our treatment of indigenous peoples and asylum seekers, Australia does not have a strong human rights track record. Every little thing that we can do to turn this around and become a nation that is recognised as a champion for human rights counts. 

* I should say that Marion’s co-author for this article was Aparna Watal. I’ve never met her but, writing sub-headings like “Opportunities for Fashion Activism”, she’s a lady who is speaking my language.