A re-examination of the application and effect of s 79 of the Judiciary Act 1903 (Cth) — that “tangled and technical” topic — is called for by three developments: the institution, in 1976, of the procedure which the High Court has used to remit all diversity suits to other courts; the establishment of the seat of the High Court in the Australian Capital Territory; and the enactment of cross-vesting legislation in all Australian jurisdictions.

Those events have raised problems as to the law applicable when a court is exercising federal jurisdiction. A related question, to which no consistently satisfactory answer has been given, is: which is the most appropriate court to which to remit any particular case? That problem will be discussed below, although it is likely to arise less frequently with the coming into force of the new legislation on the cross-vesting of jurisdiction.

The campaign being waged by the Government of the Northern Territory to have the Territory granted statehood, if successful, should result in the first use of s 121 of the Australian Constitution. The section reads:

Subject to this Act, the registration of a trade mark in Part A or Part B of the register, if valid, gives to the registered proprietor of the trade mark the right to exclusive use of the trade mark in relation to the goods or services in respect of which the trade mark is registered and to obtain relief in respect of infringement of the trade mark in the manner provided by this Act.

The Australian scheme of Intellectual Property Law includes the registration and protection of trade marks pursuant to the Trade Marks Act I955 (Cth) (the Act).

Section 58(1) of the Act, reproduced above, grants the right to exclusive use of the registered trade mark to the registered proprietor. Section 62(1) deems that such a trade mark is infringed as follows: