Bilski et al. have filed their written brief in their appeal to the US Supreme Court over the Federal Circuit’s disallowance of their “business method patent” – a method for managing risk when buying or selling energy commodities.
Patently-O has a guest blog analysing the submission and quite a range of comments.
![Reblog this post [with Zemanta]](https://i0.wp.com/img.zemanta.com/reblog_e.png?w=1200)
Last Friday, the High Court granted special leave to appeal in 2 trade mark matters:
Given only about 80 cases a year score this level of achievement, there are obviously big issues afoot.
The Gallo case raises the fundamental issue of what is “use as a trade mark”. The trade mark owner had never sold or supplied wine bearing his mark into Australia. However, some wine which his authorised user in the USA had apparently sold to someone in Germany some how made its way to Australia. The Courts below had refused to find that was sufficient for use on the grounds that use required some intention to project the goods into the course of trade in Australia.
During the course of the application, Gummow J also questioned whether the potential exercise of the discretion against removal was on the table.
There would also appear to be an application for leave to cross-appeal lurking in the wings somewhere.
The Health World case seems to be of rather narrow compass. It raises the question of what constitutes a “person aggrieved” for the purposes of standing under s 92 to seek removal of a trade mark for non-use. The requirement for standing, however, has subsequently been broadened so that any person may now bring the action. The applicant for special leave was not even called on. During the course of the application, Gummow J noted:
GUMMOW J: Yes, but what is the rationale for saying that? If there is a register and it has a trademark on it that should not be there, and another trader is prepared to come along and expend the money to get it removed, why would you say they cannot come? Why should this burden on the public freedom to trade be retained?
Lid dip: POF
High Court to hear trade marks issues Read More »
Another round in AP’s war on the internet:
Associated Press would like to charge you for any extracts you take from its website.
Starting price is US$12.50 for 5 – 25 words.
Apparently, it’s the (iCopy)right thing to do!
I guess that means “they” think that now you can pay for the “service” easily it won’t be fair use (USA only) or fair dealing.
Lid dip: priorsmart
AP charges for quotes Read More »
Logan J has granted an interlocutory injunction under the Spam Act 2003, pending trial for civil penalties.
Apart from the fact that cases under the Act are not exactly thick on the ground, the debate in the case really turned on:
Logan J considered the narrower form would suffice, but refused to limit it by reference to “reasonable endeavours”:
Subject to one qualification, I consider that the undertakings proffered by the remaining Respondents sufficiently meet the case for interlocutory injunctive relief that ACMA has established. That qualification relates to Winning’s undertaking only that it will “use reasonable endeavours” to remove or otherwise deactivate, or cause to be removed or deactivated, any fictitious profiles on dating websites or social networking websites it has registered or otherwise placed on those websites, whether by itself, its servants or agents. Winning seems, prima facie, to have control in respect of such websites. ACMA, in my opinion, has established a case for an interlocutory order that Winning remove or deactivate the websites concerned. If it transpires, for some unforeseen reason, that Winning cannot, notwithstanding what it shows to be endeavours which the Court regards as reasonable effect removal or deactivation, it and its officers would not be found guilty of a contempt. That though is to anticipate. Further, what, prospectively, amounts to “reasonable endeavours” may be a subject upon which reasonable people might reasonably differ. It is undesirable, in my opinion, that that degree of imprecision attend either an interlocutory injunction or an undertaking which upon acceptance will have the same practical effect.
Australian Communications and Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong [2009] FCA 539
