Over at Slashdot you will find some thoughtful (and practical) suggestions about what to do (from the in-house IT guy’s perspective) if you (or your client) finds pirated software at work – be warned, you have to scroll through the usual behind the shelter shed contributions.
Lid dip: Marty
Pirated software at work Read More »
Prof. Gans over at CoreEcon takes issue with Eric Clemons’ paper in which Prof. Clemons appears to be arguing that Google’s business model – using sponsored links and paid advertising triggered by keywords and the like – is based on misdirection.
Now, if Prof. Clemons were right, that could be a reason for contending that the use of trade marks in keywords etc. is (at least) misleading or deceptive conduct. But, as noted, Prof. Gans puts a very big question mark over this.
Now, neither of the Professors is dealing with the legal arguments, but I do wonder why people would click on (keep clicking on) Google’s sponsored links on the scale which they apparently do if the sponsored links etc. were in fact misdirecting them.
Whatever happened to the case which the ACCC brought against Google here?
IPKat overlooks the work in progress in the EU here.
Adwords and Keywords Read More »
Australia has entered into Free Trade Agreements (1) with NZ and ASEAN and (2) with Chile.
ASEAN as a bloc is apparently our largest trading partner.
Chapter 13 deals with Intellectual Property. Various fact sheets, e.g. Pharmaceuticals, deal with our exports or imports thereto.
Minister Crean’s press releases here and here.
AANZFTA here and chapter 13 here; Australian guide with links to all sorts of things. Trade overview. The words “may” and “shall endeavour to” feature quite a lot in Chapter 13.
Australia-Chile FTA index and chapter 17 (IP) here.
Hey, our 12 month grace period for filing patents will work in Chile, see art. 17.22! Can’t spot a corresponding provision in the AANZFTA? Also, to facilitate domain name dispute resolution, Chile has agreed to adopt an UDRP-style dispute resolution process for its cc.TLD (assuming it doesn’t already have one, of course).
Free trade Dream Time Read More »
(and therefore infringed???) is very hard:
Carlisle lost its appeal against the finding that it infringed Barrett Property Group’s copyright int eh Seattle and Memphis – the second of the alfresco cases.
51 In our opinion, the appellant’s submissions must fail.
52 The context in which the appellant’s submissions must be considered is an appropriate starting point. Two points are important. First, it is not suggested by the appellant that a judge, after a proper examination of the evidence, could not reach the conclusions which were in fact reached by the primary judge. In our opinion, a judge, after a proper examination of the evidence, clearly could reach the conclusions which were in fact reached by the primary judge. The handwritten notes of Mr Megens and of Mr Feldman make no mention of the Rochester and neither of them had any recollection of any mention of the Rochester. It is undoubtedly true to say, as the primary judge did, that, in view of the alleged importance of the Rochester to the derivation of the design, one would have expected that the legal practitioners at the conference would have made a note of it had it been mentioned. Secondly, Mr Megens gave his evidence in chief by affidavit and by way of a limited number of oral answers to questions. His affidavit referred to his handwritten notes and typed notes of the conference which notes were exhibited to his affidavit. He did not give any further evidence of his recollections of the conference in his affidavit.
The Court then considered each of the appellant’s arguments and rejected them or found that the primary judge had taken the point into account.
Carlisle Homes Pty Ltd v Barrett Property Group Pty Ltd [2009] FCAFC 31
Kim on the monopoly in the alfresco.
Trying to appeal a finding that you copied Read More »
Looks like New Zealand will be repealing its law imposing a “3 strikes” ban requiring ISPs to cut off infringing downloaders.
Howard has the news at Excess Copyright. Imagine how much lobbying is going to take place now? How long before the USTR has to fly all the way down “here”?
Howard also links to an interesting article about the settlement by Eire’s biggest ISP.
Our law, s 116AG, already gives the Court power to order an ISP to do this and, of course, the case against iiNet is still winding its way through the legal process.
3 strikes in Kiwi land Read More »
WIPO’s annual report summarising developments in domain name disputes for 2008 has been published here.
The headline attracting news around the world:
a record 2,329 complaints filed
Interestingly,
the WIPO Center has received 14,663 UDRP or UDRP-based cases (gTLDs and ccTLDs), covering 26,262 separate domain names. Reflecting the truly global scope of this dispute mechanism, named parties to WIPO cases represented over 100 countries in 2008 alone. The United States of America (US), France, the United Kingdom (UK), Germany, Switzerland and Spain were the most frequent bases for complainants, while the US, the UK, China, Spain, Canada, and France were the most represented countries by named respondent party
and
almost 30% of all cases were settled without a panel decision. Of the remainder, 85% of the panel decisions favored the complainant, while 15% of the complaints were denied, leaving the names in the possession of the registration holder. Cases were handled by 285 WIPO panelists from 40 countries.
There are also short notes on what sectors were affected, and further developments in the domain name space.
WIPO UDRP annual report Read More »
Howard’s Storage World (HSW) granted Haviv a franchise to operate an Howard’s Storage World retail outlet at Burwood in Sydney. The terms of the franchise included a grant of an exclusive territory for a radius of 5km.
Subsequently, HSW granted someone else an franchise to operate an Howard’s Storage World franchise at a new shopping centre at Rhodes, approximately 4,840m from Haviv’s Burwood store.
The breach of the contractual exclusivity promise was found, but claims for breach of TPA by misleading or deceptive conduct were rejected.
Jagot J explores the basis on which the damages payable to Haviv should be calculated in Haviv Holdings Pty Limited v Howards Storage World Pty Ltd [2009] FCA 242.
Her Honour considered the nature of the grant of exclusivity – it did not extend as Haviv contended, to a right to be offered the franchise for Rhodes. Nor did it preclude the opening of another store with a territory radius of 5km which overlapped with the territory within 5km of the Burwood store.
On the calculation of damages, her Honour considered the following issues:
At [110] her Honour summarised her findings:
(1) Mr Halligan’s “alternative C” period of assessment should be used (that is, with damages assessed until the end of the option period, being 17 July 2022).
(2) The benchmark group should comprise Hornsby, East Gardens, Macquarie and Bondi Junction stores.
(3) The discount rates applied should be 28% for losses to the date of judgment and 30% for losses thereafter.
(4) The rent increase should reflect the true position where known (that is, $138,490.56 per annum for seven months from 1 September 2007 and an annual rental of $187,000 from 1 April 2008 to the end of the current lease on 31 March 2013 with appropriate adjustments thereafter from that base).
(5) The figure of 50.3% should be used as the gross profit percentage for the 2007 financial year onwards.
(6) The refurbishment costs should be $40,000 in July 2007, $155,000 in July 2012 and $40,000 in July 2017 and subject to mid-period discounting.
The parties were sent away to have their experts recalculate their reports on the basis of her Honour’s findings.
Damages for breach of franchise agreement Read More »
The Productivity Commission has released its draft report into the copyright restrictions on parallel importing books:
Australia’s Parallel Import Restrictions (PIRs) for books should be modified as follows.
• PIRs should apply for 12 months from the date of first publication of a book in Australia. Thereafter, parallel importation should be freely permitted.
• If a PIR-protected book becomes unavailable during this 12 month period, then parallel importation should be freely permitted until local supply is re- established, or the expiry of the 12 month period allows for generalised parallel importation.
• Booksellers should be allowed to overtly offer an aggregation service for individual orders of imported books under the single use provisions.
All other aspects of the current PIR arrangements should continue unchanged, including the 30 day rule.
All to be topped up with what appears to be the now mandatory 5 year review to see if it’s working.
I wonder how many books your local bookseller will have to order at once before he or she will start to consider absorbing the cost of freight? Of course, we can always hope that they also find out about addall.com and all those other internet sites rather than using that complicated clunky thing they play with on their computers while you are growing a beard.
Links to the full report here.
Productivity Commission on parallel imports Read More »
Dr Emmerson QC (who surely needs no introduction) is going to launch the new book edited by Andrew Kenyon, Megan Richardson and Sam Ricketson – all professors well known to you on 25 March 2009.
Chapters include:
and what IP nerd could ask for more to read as the dark cold nights of winter peek over the horizon?
Details of the launch here.
Landmarks in Australian IP Read More »
Nic Suzor explores whether you might be infringing copyright in Australia when you dress your character (is that an avatar?) up in your favourite online world as a SuperHERO!
Which superhero would you be? Hercules or Captain Dylan Hunt?
Copyright in a superhero Read More »
