Thursday, December 12, 2013

Trade Marks for Real Estate Developments in Australia – the hidden implications in searching and registration

Common law searches for businesses in the real estate sector often miss statutory databases.

Place names are governed internationally by the UN Group of Experts of Geographic Names (UNGEGN). Australia sits within UNGEGN’s Asia South-east Pacific South-west Division, represented by the Committee for Geographic Names of Australasia (CGNA), part of the Intergovernmental Committee on Surveying & Mapping.

The CGNA forms policies and guidelines around the naming of places in Australia and New Zealand. Place names are collated in the CGNA Gazetteer of Australia.

Within Western Australia, the governmental authority called Landgate has its Geographic Names Committee (GNC). Through the Land Administration Act 1997 (WA), Land Administration Regulations 1998 (WA) and the Instrument of Delegations, the Chairman and the Executive Officer of the GNC have the authority to approve naming submissions.

Landgate’s rules on the naming of places are contained in its document entitled “Policies and Standards for Geographical Naming in Western Australia” -$FILE/GNCommittee.pdf (the Policy). The Policy is a well-considered document, apparently taking into account the considerations of orthography developed from the UNGEGN, the CGNA and GNC.

Paragraphs 2.8 and 18 of the Policy says:

2.8 In the public interest
Any changes to existing topographic features, administrative boundaries or road names can affect delivery and response times for emergency dispatch, land titles processes and the provision of utilities and services. Such changes will not only affect current community and/or commercial interests, but will also affect future residents, businesses, property owners and visitors.

Therefore, the long-term consequences and effects upon the wider community of any proposed naming action shall be considered. Such proposals shall only be accepted when the long-term benefits to the community can be shown to outweigh any private or corporate interests or short-term effects.

18 Geographic Names Committee
2.8.1 Public safety
Any new, or change to existing, topographic features, administrative boundaries or road names shall not risk public and operational safety, interfere with emergency service operations, or cause confusion for transport, utility, communication and mail services.

Landgate does not administer the naming of estates (real estate developments) (see para 7.2 of the Policy).

But Landgate wants to know about toponyms allocated by real estate developers, because of the importance of ensuring that emergency services, and transport, utility, communication and mail services providers (such as Australia Post) know about them. See para 7.2 of the Policy:

Landgate should be informed of all such names so that they can be recorded for information purposes to assist with emergency response coordination.

Information such as estate development names is collated by Landgate within its names database called GEONOMA. GEONOMA captures roads, localities, features, administrative boundaries), and cadastral information such as lot and house number. GEONOMA is recognised by the Western Australian government as the primary source and official register for all approved named topographic features, administrative boundaries and roads, including their positions and extents. Names added to or amended within GEONOMA are automatically propagated to features in other linked government systems, including emergency services organisations. The protection of life and property by emergency service organisations and natural disaster relief is assisted by this system (one of the reasons why a representative of the Western Australian Department of Fire and Emergency Services sits on the GNC).

Paragraph 5.3 of the Policy says:

Names proposed for unnamed topographic features shall not be duplicated. Duplicated names are considered to be two or more names which are within close proximity and those which are identical or have similar spelling or pronunciation. Duplicated names may lead to confusion for the public and to emergency service providers.

Businesses seeking trade mark rights in respect of toponyms should:

a. check with the CGNA to ensure that the name of the land development is not already taken;
b. notify Landgate or its equivalents in other Australian states and territories of the development’s name.There can be severe consequences beyond mere infringement if there is any duplication or ambiguity about the allocation of a toponym to a locality.

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