188AProtected symbols

#### 188A Protected symbols (1) A person must not: (a) use in relation to a business, trade, profession or occupation; or (b) apply, as a trade mark or otherwise, to goods imported, manufactured, produced, sold, offered for sale or let on hire; or (c) use in relation to: (i) goods or services; or (ii) the promotion, by any means, of supply or use of goods or services; a protected symbol, or a symbol so closely resembling a protected symbol as to be likely to be mistaken for it. (2) A person who intentionally or recklessly contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding 30 penalty units. > Note: See also sections 4AA and 4B of the Crimes Act 1914. (3) Nothing in subsection (1) limits anything else in that subsection. (4) Nothing in subsection (1), so far as it applies in relation to a protected symbol, affects rights conferred by law on a person in relation to: (a) a trade mark that is registered under the Trade Marks Act 1995; or (b) a design that is registered under the Designs Act 1906; and was so registered immediately before 16 August 1996 in relation to the symbol. (5) Nothing in this section, so far as it applies to a protected symbol, affects the use, or rights conferred by law relating to the use, of the symbol by a person in a particular manner if, immediately before 16 August 1996, the person: (a) was using the 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 symbol or a similar symbol, goods or services as the goods or services of the first‑mentioned person. (6) This section does not apply to a person who uses or applies a protected symbol for the purposes of labelling a device in accordance with section 182 of this Act or labelling customer equipment or customer cabling in accordance with section 407 of the Telecommunications Act 1997. (7) This section does not apply to a person who uses or applies a protected symbol for a purpose of a kind specified in a written determination made by the ACA. (8) A reference in this section to a protected symbol is a reference to: (a) the symbol known in the radiocommunications community as the C‑Tick mark: (i) the design of which is set out in a written determination made by the ACA; and (ii) a purpose of which, after the commencement of this section, is to indicate compliance by a device with: (A) any applicable standards; and (B) any applicable class licences; or (b) a symbol: (i) the design of which is set out in a written determination made by the ACA; and (ii) a purpose of which, after the commencement of this section, is to indicate compliance by a device with: (A) any applicable standards; and (B) any applicable class licences; or (c) a symbol: (i) the design of which is set out in a written determination made by the ACA; and (ii) a purpose of which, after the commencement of this section, is to indicate non‑compliance by a device with: (A) applicable standards; and (B) any applicable class licences. (9) For the purposes of this Division, if: (a) a label is applied to a device; and (b) the label embodies a symbol referred to in paragraph (8)(a), or (b); the label is taken to indicate that the device meets the requirements of: (c) each applicable standard; and (d) each applicable class licence. (10) For the purposes of this Division, if: (a) a label is applied to a device; and (b) the label embodies a symbol referred to in paragraph (8)(c); the label is taken to indicate that the device does not meet the requirements of: (c) each applicable standard; and (d) each applicable class licence. (11) For the purposes of this section, a standard or class licence is taken to be applicable in relation to a device if, and only if, the standard or licence was specified in the subsection 182(1) notice that dealt with the manufacture or importation of the device. (12) A determination made by the ACA under subsection (7) or (8) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901. (13) In addition to its effect apart from this subsection, this section also has the effect it would have if a reference in subsection (1) to a person were, by express provision, confined to a corporation to which paragraph 51(xx) of the Constitution applies. (14) In addition to its effect apart from this subsection, this section also has the effect it would have if each reference in subsection (1) to use, or to application, were a reference to use or application, as the case may be, in the course of, or in relation to: (a) trade or commerce between Australia and places outside Australia; or (b) trade or commerce among the States; or (c) trade or commerce within a Territory, between a State and a Territory or between 2 Territories; or (d) the supply of goods or services to the Commonwealth, to a Territory or to an authority or instrumentality of the Commonwealth or of a Territory; or (e) the defence of Australia; or (f) the operation of lighthouses, lightships, beacons or buoys; or (g) astronomical or meteorological observations; or (h) an activity of a corporation to which paragraph 51(xx) of the Constitution applies; or (i) banking, other than State banking; or (j) insurance, other than State insurance; or (k) weighing or measuring. (15) In this section: > customer cabling has the same meaning as in the Telecommunications Act 1997. > customer equipment has the same meaning as in the Telecommunications Act 1997. > radiocommunications community has the same meaning as in the Australian Communications Authority Act 1997. 64 Paragraph 277(1)(a) Repeal the paragraph, substitute: (a) a transmitter is operating on any land, or on or in any premises, vessel, aircraft or vehicle; and 65 Paragraph 277(1)(c) Repeal the paragraph, substitute: (c) the operation of the transmitter is: (i) interfering with radiocommunications that are essential to the safety of human life; or (ii) interfering substantially with the operation of an organisation specified in regulations made for the purposes of paragraph 193(1)(a); or (iii) interfering substantially with the operation of an organisation referred to in paragraph 193(1)(b) or (c); or (iv) causing substantial loss or damage; 66 Paragraph 277(1)(e) Repeal the paragraph, substitute: (e) subject to subsection (2), take such action as the inspector considers necessary to cause the transmitter to: (i) cease operating; or (ii) operate in such a way that no longer gives rise to one or more of the consequences set out in paragraph (c). 67 Paragraph 279(1)(d) Omit “affixed”, substitute “applied”. 68 After paragraph 285(q) Insert: (qa) giving a notice under subsection 169(6); 69 Subsections 300(1) and (4) Omit “affix”, substitute “apply”. 70 Section 314A Repeal the section, substitute: