38Use of protected names and symbols

#### 38 Use of protected names and symbols (1) A person must not, without the Secretary’s written consent: (a) use in relation to a business, trade, profession or occupation; or (b) use as the name, or as part of the name, of any firm, body corporate, institution, premises, vehicle, ship, aircraft or other craft; or (c) apply, as a trade mark or otherwise, to goods imported, manufactured, produced, sold, offered for sale or let for hire; or (d) use in relation to: (i) goods or services; or (ii) the promotion, by any means, of the supply or use of goods or services: either: (e) a protected name, or a name so closely resembling a protected name as to be likely to be mistaken for it; or (f) a protected symbol, or a symbol so closely resembling a protected symbol as to be likely to be mistaken for it. Penalty: 30 penalty units. (1A) Subsection (1) is an offence of strict liability. (2) Subsection (1), so far as it applies in relation to a particular protected name or a protected symbol, does not affect rights conferred by law on a person in relation to: (a) a trade mark that is a registered trade mark for the purposes of the Trade Marks Act 1995; or (b) a design registered under the Designs Act 2003; that was so registered, or was registered under the Designs Act 1906, at the protection time in relation to the name or symbol. (3) This section, so far as it applies in relation to a particular protected name or a protected symbol, does not affect the use, or rights conferred by law relating to the use, of a name or symbol (the relevant name or symbol) by a person in a particular manner if, at the protection time in relation to the protected name or protected symbol, the person: (a) was using the relevant name or symbol in good faith in that manner; or (b) would have been entitled to prevent another person from passing off, by means of the use of the relevant name or symbol or a similar name or symbol, goods or services as the goods or services of the first‑mentioned person. (3A) Subsection (1) applies in relation to the use or application of the protected name “Services Australia” only if the use or application is, or is likely to be mistaken to be, in connection with the operations of Services Australia as an executive agency or the provision of services by the Commonwealth. (3B) The prosecution bears the legal burden in relation to the matter in subsection (3A). (4) In this section: > protected name means any of the following names: (a) “Commonwealth Services Delivery Agency”; (aa) “Services Australia”; (b) such other names as are prescribed. > protected symbol means: (a) a symbol: (i) that is used, or for use, in connection with the performance of any or all of the functions of the Chief Executive Centrelink; and (ii) the design of which is set out in the regulations; or (b) a symbol: (i) that is used, or for use, in connection with one or more services, benefits, programs or facilities, where Departmental employees are involved in the provision of those services, benefits, programs or facilities; and (ii) the design of which is set out in the regulations. > protection time means: (a) in relation to the name “Commonwealth Services Delivery Agency”—the time immediately before the commencement of this Act; or (aa) in relation to the name “Services Australia”—the time immediately before the day the Services Australia Governance Amendment Act 2020 receives the Royal Assent; or (b) in relation to any other name—the time immediately before the commencement of the regulation prescribing the name; or (c) in relation to a protected symbol—the time immediately before the commencement of the regulation setting out the design of the symbol. (5) To avoid doubt, a name may be prescribed by regulations made for the purposes of paragraph (b) of the definition of protected name in subsection (4) even if the name is not used, or for use, in connection with the performance of any or all of the functions of the Chief Executive Centrelink. (6) To avoid doubt, the design of a symbol may be set out in regulations made for the purposes of subparagraph (b)(ii) of the definition of protected symbol in subsection (4) even if the symbol is not used, or for use, in connection with the performance of any or all of the functions of the Chief Executive Centrelink. (7) For the purposes of subparagraph (b)(i) of the definition of protected symbol in subsection (4), a person is taken to be involved in the provision of services, benefits, programs or facilities if the person’s duties include: (a) making payments in connection with the services, benefits, programs or facilities; or (b) making decisions in connection with the services, benefits, programs or facilities; or (c) collecting information in connection with the services, benefits, programs or facilities; or (d) providing information about the services, benefits, programs or facilities.