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In Mayne Industries Pty Ltd v Advanced Engineering Group Pty Ltd [2008] FCA 27, the registered shape trade mark was for an S-shaped loop of wire that found particular application in holding farm fences in place. A patent for the S-shaped wire loop had long since expired. Subsequently, the business interests associated with the original patent applied for a shape trade mark which consisted primarily of the S shape as set out in the patent. The trade mark owners then sued for trade mark infringement to keep a new competitor out of the market.
The Federal Court exonerated the new competitor, holding its use was use of a functional shape and not use of a trade mark, and then expunged the trade mark from the register. The Judge held that “the [Trade Marks] Act, by enabling shapes to be registered as a badge of origin did not establish a regime under which inventors might be able to secure enduring exclusive rights of use and foreclosure of others through infringement proceedings for the shape of a functional manner of new manufacture formerly the subject of a patent, as in this case”.
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