185AUse of protected names and symbols

185A  Use of protected names and symbols

 (1) A person must not, without the Operator’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.

 (2) Subsection (1) is an offence of strict liability.

 (3) Subsection (1) does not affect the use of a name or symbol by a participating State or a participating Territory.

Note: A defendant bears an evidential burden in relation to the matter in subsection (3): see subsection 13.3(3) of the Criminal Code.

 (4) 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.

Note: A defendant bears an evidential burden in relation to the matter in subsection (4): see subsection 13.3(3) of the Criminal Code.

 (5) 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.

Note: A defendant bears an evidential burden in relation to the matter in subsection (5): see subsection 13.3(3) of the Criminal Code.