Currently, under section 19 of the Olympic Insignia Protection Act 1987 (OIP Act) trade marks containing marks that are or resemble the Olympic motto, symbols or words cannot be registered under the Trade Marks Act 1995 (Act). However, section 42(b) of the Act allows a ground for rejection to be raised only where use of a trade mark would be contrary to law. As section 42(b) of the Act provides only for "use" of a trade mark, it cannot be raised as a ground for rejection for trade mark applications that contain subject matter precluded by section 19 of the OIP Act.
Under this issue, inclusion of the terminology "use" within section 19 of the OIP Act and consent/exemption provisions would allow IP Australia to give effect and prevent third parties from registering trade marks that include subject matter protected under section 19 of the OIP Act. The inclusion of exemption and/or consent provisions would also provide flexibility to allow trade marks containing the relevant subject matter to be registered should circumstances require it.