Friday, 9 January 2015

Trademarks and Politics

Picture: Gough Whitlam models T-shirt


I am a contributor to the online forum Quora, where people pose questions on all sorts of topics, and other people answer them. It is amazing how many different subjects are discussed in that forum. I'd encourage you to sign up as a user so you can follow discussions on topics that interest you. It's free.

Recently, someone asked me to answer a question on whether the names of political parties in Australia can be trademarked. The specific scenario that was posed was: "Is it legal in Australia to have both a political party and a business using the same trademark?" A trademark could apply to either a word (or words), a logo, or a combination of the two.

Now, given that the use of logos and slogans are so important in politics, in Australia as much as in any other country, you would think that the law on this topic would be fairly clear. But it's not.

After conducting a little research, I uncovered the following things:

  • Trademarks are regulated under the Trade Marks Act 1995 (Cth) and political parties under the Electoral Act 1918 (Cth).  
  • Under the Electoral Act, a party should not have a name that is confusingly similar to that of another party. There is no prohibition, however, on it having a name identical to any other type of entity.
  • There appears to be no prohibition on companies having names that overlap with those of political parties. A review of the register of Australian companies maintained by ASIC shows there are companies called "Liberal Pty Ltd" and "Australian Labor Party (Gifts and Legacies) Pty Ltd".
  • One political party has, in fact, registered its name as a trademark. This was the obscure Progressive Labour Party. This shows that trademarks and political party names can overlap. I am grateful to the author of this article on Lexology.com for this information Amazingly, according to the author (James Ellmore) no other Australian political parties have done this.
  • Although the main activity of political parties is political, i.e. influencing voters and organising candidates for elections, parties also engage in activity that could be described as commercial, e.g. selling T-shirts, souvenirs and books. The photo illustrating this blog post shows Gough Whitlam, who became Prime Minister in 1972, modelling his campaign T-shirt with the famous and very successful slogan "It's Time". 
Accordingly, I arrived at the slightly surprising conclusion that a company probably can register a trademark and then license it to a political party to be used as the party's name.  However, this is where all sorts of uncertainties intrude. If the name of a political party, which has to be registered with the Australian Electoral Commissiony, could be withdrawn by a licensor, would that influence the decision of the AEC to allow or refuse the registration? I think that is very likely. 

On the other side of the regulatory fence, would the corporate regulator, ASIC, approve of a registered company being able to control a political party through naming rights, when political parties are governed by a separate law (the Electoral Act)? This is more difficult to guess, but my feeling is that facilitating such "political projection" would be considered to be outside the purposes of the Corporations Act. In other words, ASIC's attitude might be: if you want to control a political party, you can do it under the Electoral Act like everyone else.

It would be interesting to study what Australian political parties are actually doing with companies. How do they use them? Do they have trusts established to own real estate, for example, which have corporate trustees? What about finances? On second thought, maybe that's a subject best left alone!

Please let me know if you have any thoughts on this subject, or any additional information.




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