BRCA, along with all of the other registrars, were recently notified by the Australian Communications and Media Authority (ACMA) of instances of registered cablers using the ACMA name and part of its logo in relation to their business or services, and issued the following memo to convey to registered cablers about what they are legally permitted to state publicly and what they are not.
The ACMA stated:
“Generally, we have noted that websites advertising the registered cablers’ business or service contain any of the following or variations of the following:
- statements to the effect that certain cabling work within Australia must be performed by a “licensed ACMA certified technician” and that the company’s staff are “ACMA technicians”, “ACMA private technicians”, “fully licensed ACMA technicians”, “ACMA registered technicians”, “ACMA registered cablers” or “ACMA approved”;
- a picture, located next to those statements, in the shape of a circle at the centre of which is an important part of the ACMA’s logo (namely the word “ACMA” using stylised letters) on the business website.
“The ACMA considers that the use of the ACMA’s name and part of the ACMA’s logo and its statements in relation to cabling arrangements, as described above, are unlawful.
“We ask the Registrars to draw their members’ attention to the information set out below.
Section 66 of the Australian Communications and Media Authority Act 2005
‘ACMA’ and ‘Australian Communications and Media Authority’ are protected names under subsection 66(7) of the Australian Communications and Media Authority Act 2005 (the ACMA Act). Use of a protected name in relation a business, trade, profession or occupation, or in relation to goods or services, or in relation to the promotion, by any means, of the supply or use of goods or services (without the ACMA’s consent in writing or any other legal basis) is a criminal offence under subsection 66(1) of the ACMA Act.
“The ACMA considers that a business’ use of the ACMA’s name in relation to its business or services (including promotion of the use of the business or services), as described above, (which is without the ACMA’s consent in writing or any other legal basis) is in breach of subsection 66(1).”
Trademark and copyright
“The ACMA’s logo is an Australian registered trademark (number 1302533) which is owned by the Crown in right of the Commonwealth of Australia (the Commonwealth). This gives the Commonwealth exclusive rights to use the trademark for the goods and services in respect of which it has registration, including goods and services in telecommunications.
“The copyright in the ACMA’s logo is also owned by the Commonwealth. This gives the Commonwealth exclusive rights to copy or reproduce the ACMA’s logo, publish it and communicate it to the public.
“The ACMA considers that a business’ use of part of the ACMA’s logo in relation to its business or services, as described above, (which is without permission) is an infringement of both the Commonwealth’s rights in the trademark and copyright.”
Australian Consumer Law
“The ACMA considers that the business’ use of the ACMA’s name and part of the ACMA’s logo and its statements in relation to cabling arrangements are incorrect and likely to be misleading or deceptive to the extent that they indicate that:
- certain cabling work in Australia must be performed by cabling providers who are ‘licensed’ or ‘certified’ by the ACMA or are ‘ACMA technicians’; or
- the business’ staff are ‘licensed’, ‘certified’, ‘registered’ or ‘approved’ by the ACMA or are ‘ACMA technicians’.
“Under the Telecommunications Cabling Provider Rules 2014 (the Rules), certain cabling work must be performed by:
- a registered cabling provider who is registered to perform the type of cabling work being undertaken and who has complied with the competency requirements that are specific to the type of cabling working being undertaken; or
- a supervised unregistered cabling provider (see section 4.1 of the Rules).
“A registered cabling provider is registered under a registration system which is operated by registrars who have been accredited by the ACMA in accordance with the Rules (cabling registrars). There is no ‘licensing’ or ‘certification’ of cabling providers by the ACMA itself, nor are there any ‘ACMA technicians’ that work for the company or any other third-party under these arrangements.
“A business’ use of the ACMA’s name and part of the ACMA’s logo and its statements in relation to the cabling arrangements, as described above, may give the public a false impression that the ACMA is affiliated with or endorses the business or services which may amount to misleading or deceptive conduct, in breach of the Australian Consumer Law.
Further action
“The ACMA wishes to provide registered cablers the opportunity to address the issues identified above (if applicable).
“Any registered cabler who has been using the ACMA’s name or any part of the ACMA’s logo to advertise their business or service is requested to remove references to the ACMA’s name and any part of the ACMA’s logo as soon as possible.
“The ACMA is reviewing the material on websites, and it may also directly contact registered cablers if necessary. The ACMA reserves the right to take any further action if warranted.”
If you have any questions, please contact Cuong Nguyen, Assistant Manager via email: cuong.nguyen@acma.gov.au or phone: (03) 9963 6853.