41CProtection of names and symbols

#### 41C Protection of names and symbols (1) A person who: (a) uses the name “medicare” or “Medicare Australia”, or a prescribed symbol, in connection with a business, trade, profession or occupation; (b) sells, offers for sale, exposes for sale or lets for hire, or otherwise has in his or her possession for sale or hire, goods to which the name “medicare” or “Medicare Australia” or a prescribed symbol has been applied; (c) uses the name “medicare” or “Medicare Australia” or a prescribed symbol in relation to goods or to the promotion, by any means, of the supply or use of goods; or (d) imports into Australia for sale, or for use for the purposes of any business, trade, profession or occupation, any article to which the name “medicare” or “Medicare Australia” or a prescribed symbol has been applied outside Australia; commits an offence against this section. > Note: See section 41CA for exceptions. (2) Where the name “medicare” or “Medicare Australia” or a prescribed symbol: (a) is used as, or as part of, the name or emblem of an association; (b) is used as, or as part of, the name or emblem of a newspaper or magazine owned by, or published by or on behalf of, an association; or (c) is used by an association in connection with any activity of the association with the result of implying that the association is in any way connected with the Commonwealth, the Chief Executive Medicare or Services Australia; then: (d) if the association is a body corporate—the association; or (e) if the association is not a body corporate—every member of the committee of management or other governing body of the association; commits an offence against this section. > Note: See section 41CA for exceptions. (3) A person who commits an offence against this section is punishable, upon conviction: (a) in the case of a person not being a body corporate—by a fine not exceeding 20 penalty units; or (b) in the case of a person being a body corporate—by a fine not exceeding 40 penalty units. (4) The conviction of a person of an offence against this section in respect of the use of a name or prescribed symbol does not prevent a further conviction of that person in respect of the use of that name or prescribed symbol at any time after the first‑mentioned conviction. (5) For the purposes of this section: (a) a reference to the name “medicare” or “Medicare Australia” is to be read as including a reference to a name or expression that so nearly resembles the name as to be capable of being mistaken for the name; and (b) a reference to an official “medicare” or “Medicare Australia” symbol is to be read as a reference to a symbol declared by the regulations to be an official “medicare” or “Medicare Australia” symbol; and (c) a reference to a prescribed symbol is to be read as a reference to an emblem, brand, design, symbol, logo or mark that: (i) is identical with an official “medicare” or “Medicare Australia” symbol; or (ii) so nearly resembles an official “medicare” or “Medicare Australia” symbol as to be capable of being mistaken for an official “medicare” or “Medicare Australia” symbol; and (d) a name or a prescribed symbol shall be deemed to be applied to goods if it: (i) is woven in, impressed on, worked into or affixed to the goods; or (ii) is applied to a covering, label, reel or thing in or with which the goods are supplied; and (e) a name or a prescribed symbol shall be deemed to be used in relation to goods, or to the promotion of the supply or use of goods, if it is used in a sign, advertisement (whether printed, broadcast or televised), invoice, catalogue, price list or other document in relation to goods; and (f) the reference in paragraph (d) to a covering includes a reference to a stopper, glass, bottle, vessel, box, capsule, case, frame or wrapper and the reference in that paragraph to a label includes a reference to a band or ticket. (7) Subject to subsection (9), nothing in this section affects any rights conferred by law on a person in respect of: (a) a trade mark registered under the Trade Marks Act 1955, being a trade mark that was so registered before the date of commencement of this section; or (b) a design registered under the Designs Act 2003, being a design that was registered under the Designs Act 1906 before the commencement of this section. (8) Subject to subsection (9), nothing in this section affects the use, or any rights conferred by law relating to the use, of a name or a symbol on or after the date of commencement of this section if: (a) within the prescribed period before that date, the person used the name or symbol in good faith in a manner mentioned in subsection (1) or (2); or (b) immediately before that date the person would have been entitled to prevent another person from passing off, by means of the use of that name or symbol or of a similar name or symbol, goods or services as the goods or services of that first‑mentioned person. (9) No action or proceeding, whether criminal or civil, lies against the Commonwealth for or in relation to the use by the Commonwealth of the name “medicare” or “Medicare Australia” or of an official “medicare” or “Medicare Australia” symbol. (10) To the extent that subsection (9) results in an acquisition of property from any person, the Commonwealth is liable to pay to that person such compensation as is agreed upon between them or, in default of agreement, as is determined by the Federal Court of Australia. (11) The Federal Court of Australia has jurisdiction with respect of matters arising under subsection (10).