A Global and Local Outlook
Elgar Intellectual Property Law and Practice series
Edited by Irene Calboli and Jacques de Werra
Chapter 9: REGISTERING SECURITY INTERESTS OVER TRADEMARKS IN AUSTRALIA: THEORY AND PRACTICE
There should be very little to say about the registration of security interests over trademarks in Australia. More precisely, one would expect that everything that might be said about this topic would constitute little more than an account of a general set of legal arrangements that have a field of operation extending well beyond trademark law. This is because the introduction of the Personal Property Securities Act 2009 (Cth) (PPSA), the key provisions of which came into effect on 30 January 2012, was meant to produce a single national record of security interests over all forms of personal property, both tangible and intangible. The resulting national Personal Property Securities Register (PPS Register) goes a long way towards achieving this aim; for the most part it succeeds in providing a single, reliable source of information. Most importantly, if a secured party fails to register its interest on the PPS Register, its interest is ‘unperfected’, and a buyer will take the property free of the unregistered security interest. Conversely, a registered, perfected interest will be enforceable against entirely innocent and unaware third party purchasers. However, with regards to trademarks, the PPSA does not succeed in its aim of creating a unitary register that is determinative of all questions relating to the enforceability of security interests. This is because registration of the relevant interest on the Trade Marks Register will continue to offer the holder of the security interest a range of advantages and, in some cases, will continue to be essential.
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