Australian Trade Marks Law Blog : Australian Trademarks Lawyer & Attorneys : Nicholas Weston Law Firm : Copyrights, Intellectual Property

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The 12 November 2009 decision in Alcon Inc v Bausch & Lomb (Australia) Pty Ltd [2009] FCA 1299 focuses almost exclusively on whether the defendant had used the plaintiff’s trade mark ‘as a trade mark’. Alcon has a registered trade mark ‘BSS’ for ophthalmic irrigation products and, not surprisingly, objected to Bausch & Lomb (BL) using the expression ‘BSS’ on its labels for its products. The case revolved primarily around the issues of whether BL had used the trade mark as a trade mark and related issues as to whether the trade mark should remain registered, primarily on the grounds that it was not distinctive.

Whether BL was using the letters BSS as a trade mark required a detailed analysis of the context of that use. Set out below are the findings of the Judge.

155.          The following factors are relevant to the present question:

(a) The letters “BSS” appear in block white letters in the top section of the label with the royal blue background. The trade mark “AQSIA™” appears in the same part of that label. The letters used to form “AQSIA™” are larger than those used to form “BSS”. This part of the label is intended to be separate from and more prominent than the rest of the label. The impression created by the positioning of “AQSIA” and “BSS” is that this part of the label is dealing with branding of the product;

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From 16 November 2009, the Internet Corporation for Assigned Names and Numbers (ICANN) will take the first step in a long process to introduce the option of ending domain names in non-Latin characters with an aim to improving access for 800 million-plus Internet users in non-Latin script using countries. However, no-one can register domain names with the new endings yet, so keep your hairy shirt on. If you cannot understand non-Latin domain name endings, this article may help, but finding websites featuring Thai ladyboys is about to get a whole lot more difficult.

Under the new system, Country Code Top Level Domains (ccTLDs) such as .au, and generic Top Level Domains (gTLDs) such as .com, can obtain new endings known as ‘Internationalised Domain Names’ (IDNs) in languages such as Chinese, Hebrew or Cyrillic.

On that date, countries with a non-Latin native script may apply to ICANN for a ‘FASTTRACK’ IDN ccTLD so that the letters to the right of the dot can reflect that country’s name in the script of its official language. ICANN will evaluate these applications on a number of criteria. If ICANN’s filing and technical requirements are met by the application, including government and community support and country stability considerations, the relevant applicant nation will be fast tracked so that they can issue new IDN ccTLD registrations in the second quarter of 2010.