82 Trademark Rep. 341 (1992)
Moove: The Experiment That Went Wrong

handle is hein.journals/thetmr82 and id is 361 raw text is: Vol. 82 TMR

By Wayne Covell*
A guiding principle in trademark jurisprudence stemming
back to the dawn of English trademark law is that if a mark
causes public deception it will not be afforded legal protection.
But a majority of judges in the High Court of Australia in New
South Wales Dairy Corporation v. Murray-Goulburn Co-operative
Co. Ltd. (the Moove case)' have ruled that a deceptive, confusing
and non-distinctive trademark can remain on the Australian
trademarks Register and retain the full benefits of registration.
The majority were also of the view that the policy of the legisla-
tion had changed so that the public interest, once predominant, is
no longer so. Support for the decision may be found in the United
Kingdom in the speech of Lord Diplock in the House of Lords in
General Electric Co. (USA) v. General Electric Co. (the GE case).2
Thus, there are now two British practice jurisdictions where a
trademark may be used as an instrument of consumer deception.
The question is: Why?
The central issue in the Moove case was the interpretation of
Section 28 of the Australian Trade Marks Act 1955 which
28. A mark-
(a) the use of which would be likely to deceive or cause
(b) the use of which would be contrary to law;
(c) which comprises or contains scandalous matter; or
(d) which would otherwise be not entitled to protection in
a court of justice,
shall not be registered as a trade mark.
* Barrister of the Supreme Court of New South Wales and lecturer in law,
University of Technology, Sydney, Australia; Regular Member of U.S. Trademark
Association. Copyright @ 1992 Wayne Covell. The author wishes to thank Margaret
Frenkel Goldstein, formerly TMR International Articles Subcommittee Chairwoman, for
her editorial guidance and assistance. The author also wishes to thank Emeritus Professor
William Morison, Professor Jim Lahore, Ross McLean and Keith Lupton for their
1. (1990) 171 CLR 363; [1991] RPC 144; (1989-1990) 18 IPR 385.
2. [1973] RPC 297 (HL), revg [1970] RPC 339 (CA).


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