Annex A2 - Official notice re copyright in the Aboriginal Flag

Date Published

Note:  The practice referred to in the first paragraph of this Official Notice is no longer current, following the decision on Advantage Rent-a-Car.  Refer to paragraph 3.4 of this Part.  



Official Notices

18 & 25 March 1999

Copyright in the Aboriginal Flag - Practice in Trade Mark Examination   

Trade Marks Act 1995  

In the course of examination of trade mark applications and in opposition proceedings, the Registrar is not empowered to decide matters arising from possible or alleged breach of copyright.  However if there has already been a court action taken under the Copyright Act and a ruling issues on ownership of copyright, the Registrar will take note of that ruling.

The Registrar of Trade Marks has received advice, from the Information and Security Law Division of the Attorney General's Department, of a decision of the Federal Court on a matter of copyright.  The case concerned disputed ownership of copyright in the artistic work known as the Aboriginal flag (Thomas v Brown and Another (1997) 37 IPR 207).  The applicant Mr Harold Joseph Thomas sought and was granted a declaration as to his ownership of copyright in the flag.

In view of this advice, the Registrar has adopted the following practice in respect of applications for registration of trade marks which include a representation of the Aboriginal flag.  The application will be rejected under paragraph 42(b) of the Trade Marks Act, as a trade mark the use of which would be contrary to law, unless the application provides evidence of an authority from the copyright owner to use the Aboriginal flag in the trade mark.