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The Federal Court, Middleton J, has rejected Bodum’s allegations that

1. the sale of the Baccarat Venice coffee plunger and Euroline’s Classic coffee plunger passed off Bodum’s Chambord coffee plunger or was otherwise misleading or deceptive; or
2. Baccarat’s Devon teapot passed off Bodum’s Assam Tea Press or was otherwise misleading or deceptive.

Playcorp Group of Companies Pty Ltd v Peter Bodum A/S [2010] FCA 23

The judgment includes depictions of the products and their packaging in the appendices.

While on the subject of Mars and darkened conference rooms, Men at Work have been found to infringe Larrikin’s copyright in Kookaburra Sits on the Old Gum Tree.

It would seem (from newspaper reports) that 2 bars were a substantial part – shades of the old Colonel Bogey newsreel case.

The video on the Age’s website has the clips of every kid’s favourite folk song and that flute riff.

Richard Acland highlights the crucial comparison in a vacuum:

Even though there was evidence that the pitch, key, rhythm, melodic shape, harmony, musical sentences and context are different, Justice Jacobson found that there was nonetheless a reproduction of a substantial part of Kookaburra in Down Under. This is not to say that Kookaburra amounted to a substantial part of the pop song.

but it all seems rather academic when Jacobson J found at [111]:

Mr Hay also accepted that for a period of about two or three years from around 2002, when he performed Down Under at concerts, he sometimes sang the words of Kookaburra at about the middle of Down Under, at the point at which he reached the flute line.

Looks rather like the crucial battle was last year’s fight over whether or not the Girl Guides or Larrikin owned the copyright in the first place.

Larrikin Music Publishing Pty Ltd v EMI Songs Australia Pty Limited [2010] FCA 29

In case you have been on Mars, or locked in a conference room writing submissions, you have probably heard that the Federal Court has rejected the music industry’s attempt to impose liability on iiNet, and ISP, for copyright infringement by authorising the infringing activities of users of its network.

Roadshow Films Pty Ltd v iiNet Limited (No. 3) [2010] FCA 24 (636 para judgment) here.

Since I will find myself still locked in aforesaid conference room, I’ll simply quote (at this stage) from the 21 para summary:

Howard Knopf and Michael Geist look at the decision from Canadian perspectives.

ACIP has published its final report into the Enforcement of plant breeder’s rights in Australia.

The report is here (pdf) – be warned 138pp, Exec Summary is 10pp.

Some recommendations:

Recommendation 1.

A new “purchase” right be added to s.11. This new right would only apply to those taxa that are specifically declared in the regulations. Industry sectors such as wheat breeders would apply to the PBR Office to have particular taxa so declared.

Recommendation 2.

The PBR Act be amended to clarify that harvested material that is also propagating material is to be considered as propagating material for the purposes of s.11, even if it is not being used for that purpose.

Recommendation 4.

There be no change to the operation of farmer’s privilege under s.17.

However, s.17 should be amended to state in easily understood terms that s.17 does not provide the farmer with the right to perform the acts listed in s.11(a) to (g). For example, the farmer will still require the PBR owner’s authorisation to sell the reproduced propagating material, the harvested material or the product of the harvested material.

Recommendation 5.

As part of IP Australia’s education and awareness programs, raise industry awareness of the opportunity under s.17(2) to have specific taxa excluded from the farmer’s privilege exemption.

Recommendation 6.

Encourage PBR owners to make clear to growers the conditions of sale of propagating material and their obligations in relation to future generations of it. This includes making clear that growers require the authorisation of the PBR owner to sell crops grown from farm-saved seed.

Recommendation 14.

The jurisdiction of the second tier of the Federal Court of Australia to include PBR matters.

Appropriately qualified magistrates must be made available and there should be appropriate measures taken to ensure the processes of the second tier are faster and cheaper than in the first tier. Examples include simplifying and standardising procedures for expert evidence and DNA testing through the issuing practice notes, use of alternate dispute resolution where appropriate, and curtailing of the discovery phase.

Recommendation 12.

An on-going Expert Panel be established to provide guidance and opinions on general issues or specific cases concerning the PBR Act and related law. The Panel should comprise appropriate people with expertise in relevant areas who provide their services as required.

Upon request from any person and for a moderate fee, the Panel may provide detailed guidance and opinions on general issues or specific cases concerning the PBR Act and related law. The Panel should focus on the enforcement of granted rights and not provide advice on the registrability of individual applications for PBR. The Panel’s opinions should be made publicly available in a manner that respects commercially sensitive material. The Panel may refer matters to the Government or ACIP as it sees fit.

Alison Brimelow, immediate past President of the European Patent Office, will give the 2nd annual Francis Gurry Lecture on 1 March 2010 at Melbourne Uni.

Her topic: “not Seeing the Wood for the Trees: Is the Patent System still fit for purpose?”

Details and registrations via here.

IPwars is heading off into the sun, sand and the salty brine. Blogging will hopefully resume “on or about” Australia Day … more likely “about”.

In the meantime

Wishing you all the Compliments of the Season!

and a happy, healthy and safe 2010.

In two ex parte applications, Greenwood J granted interlocutory injunctions restraining Customs from releasing imported goods which allegedly infringe a trade mark.

The interesting point is that the proceedings for infringement were not brought within the “action period” specified in by s 137 of the Trade Marks Act. Greenwood J reasoned:

Section 136 is headed “Release of Goods to Owner – No Action for Infringement and s 137 is headed “Action for Infringement of Trade Mark”. Some discussion has arisen in earlier authorities, including Jemella v Mackinnon & Another [2008] FCA 1022; 77 IPR 243, in which Logan J had to consider whether non-compliance with these provisions as to commencement and notification within the extension period, might have the effect of depriving the applicant of its standing to maintain infringement proceedings. I am satisfied that ss 136 and 137, taken together, do not deprive the applicant of its standing to maintain proceedings for infringement of the trade mark. Section 137 is not a primary empowering provision conferring rights of action in the applicant. It is permissive in the context in which it appears. Those rights are conferred by s 20 and the provisions of Part 12 of the Trade Marks Act. Section 137 recognises that a trade mark owner may elect to bring proceedings and ss 136 and 137 address what is to occur in the circumstances of those sections in respect of seized goods if the relevant steps are not taken. However, the provisions should be read subject to an order that might be made under s 137(5) to, in effect, preserve the status quo in circumstances where the Court is satisfied that there is a prima facie case of infringement. Nevertheless, a question arises as to whether it is appropriate to make an order directed to the Customs CEO preventing the goods from being released, in all the circumstances, in the exercise of discretion, when s 136 imposes a statutory obligation upon the Customs CEO to release the goods in the circumstances there identified and s 137 imposes time constraints. That directs attention to the merits.

That is, the foundation of the right to be protected by the interlocutory injunction was the right to sue for infringement of the registered trade mark – a right conferred by ss 20 and 120; s 137 merely facilitated that primary right.

Jemella Australia Pty Ltd v Bouobeid [2009] FCA 1567

Jemella Australia Pty Ltd v Daizli [2009] FCA 1566

In the Daizli action there is a further complication that the respondents seem to be out of the jurisdiction for some time. His Honour also refers to products being offered for sale on eBay. But, other than those products being alleged to be infringing, I’m not sure what particular significance that has.

IP Australia has issued a second consultation paper – with draft drafting instructions:

• Flexible Search and Examination
• Streamlining the Patent Process

As with the first round of the second round, comments are required by 12 Feb 2010.

The new paper and drafting instructions can be found here (pdf).

Links to all the papers, pdf and word, via here.

The Australian Life Scientist has an article on the top 10 mistakes made in setting up and running the clinical trials for TGA and FDA legal and regulatory approvals:

Special feature: Top 10 clinical trial mistakes

by James Cameron of McCullough Robertson.

Lid dip: Kim O’Connell at Mallesons.

Mars’ appeal against the rejection of its claims of trade mark infringement and misleading or deceptive conduct have been tersely rejected.

Images of the product Mars complained about here.

The Full Court noted:

9     It is not in dispute that the evidence established that:
•    confectionary is commonly packaged in primary colours and that red, in various shades, is a predominant and common, indeed ubiquitous, colour;
•    confectionary packaging commonly displays a picture or representation of the product, frequently showing a cross-section or “cut through” of the product;
•    it is not unusual for the name of the product to be written on a diagonal, from bottom left to top right;
•    it is common for packaging of confectionary to include all of the above features.

In this context, the Full Court found that the words malt balls were descriptive and the colour red used by the respondent was not distinctive.

Mars Australia Pty Ltd v Sweet Rewards Pty Ltd [2009] FCAFC 174