Trade Mark Law’s Identity Crisis (Part 1)

The concept of ‘substantial identity’ has not been the subject of sustained critical inquiry in Australian trade mark law, notwithstanding that it plays a crucial role in relation to trade mark ownership, non-use, amendments to representations, and the criminal offences. The first part of this two-part article reveals, through novel doctrinal analysis, how over the course of the twentieth century a settled, strict interpretation of substantial identity took shape in Australian trade mark law. This orthodox interpretation was recently disrupted by the Full Court of the Federal Court in Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd and Pham Global Pty Ltd v Insight Clinical Imaging Pty Ltd. In these decisions the Court reinterpreted earlier High Court authority to set up a new, significantly more expansive test of substantial identity – one that is already starting to have a major, and concerning, impact throughout Australia’s trade marks system.

Fashioning a Proper Institutional Position: Professional Identity Work in the Triadic Structure of the Care Planning Conference

Professionals do not only, as is today widely agreed on, work to construct institutionally workable identities for their clients in interaction, they also have to carry out substantial identity work themselves. Such work can be considerably more complicated in interactions which have a triadic structure, i.e. in which professionals from two different institutions and clients interact, demanding of professionals to invoke situational identities which match their relationships towards each other as well as towards the clients. By discussing the identity work of two professionals in a care planning conference, this article traces the difficulties that such a structure presents to practitioners. In addition, it sets out to show how ethnomethodologically informed membership categorization analysis and positioning analysis, as it was developed by discursive psychology, can be combined in the analysis of social work interactions in order to shed light on the identity work of social work professionals.