Trademark Licence Agreement Australia

Can a trademark or service licensee in your jurisdiction use the mark with a trademark sublicensing to third parties? If so, is the right to sublicensing exist or should it be granted by contract? Can the licensee, if it exists legally, effectively waive its sub-licensing right? Only an “exclusive licensee” is allowed to initiate a patent infringement proceeding – as a licensee under a license issued by the patent holder that confers on the licensee and the licensee and the persons authorized by the licensee the unitary and indivisible right to exploit the patent in the entire patent area, to the exclusion of the patent holder and any other person. Any reserve of rights or a limitation of the scope of the grant means that the licensee is not an “exclusive licensee” under the law. Other practices (including exceptional practices) with the exception of the resale price setting are illegal only if they have the objective, effect or likely effect of significantly weakening competition in a particular market. A prohibition on the setting of the resale price would result in the granting of a sublicensing and, therefore, prohibit a principal licensee who regulates the price at which a taker can assign a sublicensing. However, the maintenance of the resale price may be communicated to the Commission, which protects the behaviour, unless it is satisfied that the public benefits of the behaviour do not outweigh the disadvantages. An Australian party to a trade agreement may contractually agree that any or certain disputes (as the agreement clearly states) will be determined by final and binding arbitration, not litigation, and where such arbitration will take place. In the past, in discussions on the “safe harbor” that would protect the use of IPRs from some of the CCA`s prohibitions (see question 30), the nature of intellectual property behaviour, which in some circumstances could be anti-competitive, was discussed. In discussing the limits of safe harbour, the High Court found that the terms of a licensing agreement to obtain patent benefits would not be covered (Transfield Pty Ltd/Arlo International Ltd (1980) 144 CLR 83).

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