The Real Estate Institute of Australia has made a strong case in support of small business in lodging its submission to the Harper Competition Policy Review Draft Report. In its submission, which is publicly available, REIA highlights how intellectual property can be dominated by large corporations in a bid to stifle competition and uses the specific example of trademarks for website domain names. The experience of REIA and others is that big business trademark grabs not only have a major adverse impact on competition, particularly for small business, but they are deliberately used to reduce competition.

In REIA’s submission to the Harper Review reference is made to the REA group which has applied for a trademark for ‘realestate.com.au’. REIA has asked that REA Group withdraw its trademark application as, if granted, the trademark could jeopardise the use of the term ‘real estate’ by other businesses and professional bodies in the sector. There are concerns for the potential for REA once it owns the term ‘real estate’ to oppose a number of other businesses that have the term real estate and .com.au in their name. These concerns extend to the domain name being used to increase the market power of the REA Group – which is already a dominant player. Any increase in the holder’s already substantial market power raises the scope for it to eliminate or substantially damage a competitor or prevent the entry of another competitor. The REIA believes that to allow a single company to claim trademark rights to a generic term would unfairly hamper competition and that allowing a trademark on a generic term is contrary to the Australian Consumer Law. 

A related concern is that even where an initial application may be refused the applicant continues to reapply and those opposed to it have to continue to appeal against the granting of the trade mark.This is costly for small business. This is why our submission supports the Harper Review recommendation that an overarching review of intellectual property be undertaken by an independent body, such as the Productivity Commission and that the review should focus on competition issues arising from new technology developments.

(Originally published in the Dec/Jan issue of REIA News)