Mainly intellectual property (IP) issues Down Under

Sea-horse shaped chocolate not a trade mark

Having secured an International Registration, Guylain tried to register a chocolate in this shape as a trade mark in Australia through the Madrid Protocol (TM App 936483). Sundberg J, on appeal from the Registrar’s refusal, has also rejected it as incapable of distinguishing Guylain’s goods (pralines and chocolate, to be precise) under s 41. Not inherently adapted — enough First, Sundberg J was satisfied that the sea-horse shaped chocolate was.. Read More

IP Australia issues more reform discussion papers

IP Australia has released two more discussion papers of reform proposals: Flexible search and examination Flexible Search and Examination (patents) Streamlining the patent process The Streamlining paper has some ambitious goals: Removing unnecessary differences in law between Australia and overseas jurisdictions. This would help reduce the cost to applicants of re-drafting claims to meet the various requirements of each jurisdiction. It would also reduce the potential for errors to occur as a result.. Read More

Down the proverbial Technicon

Technicon has lost its appeal from trial findings that it infringed both Caroma’s registered design for a toilet pan and the copyright in drawings in technical specifications. This was a case under the old (1906) Act rules. The trial judge found there were sufficient differences to avoid liability for obvious imitation. However, there was a strong finding of fraudulent imitation. The trial judge found that Technicon at least had reason.. Read More

Spam Act

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: whether ACMA would be required to provide an undertaking as to damages – in the end, it wasn’t; whether the injunction should take the narrower form of undertakings proferred.. Read More

Kookaburra gets the Vegemite sandwich

Jacobson J has upheld Larrikin’s claim to be the owner of copyright in Kookaburra sits in the Old Gum Tree,  which means, at least, that Larrikin has standing to sue Men at Work et al. for infringing copyright in that music. Larrikin alleges that Men at Work’s Down Under (you know, unfurl the Boxing Kangaroo, declare a national holiday and have a beer with Bondy) infringes the copyright in “Kookaburra”… Read More

The Digital Economy Down Under

Minister Conroy released on 14 July a report Australia’s Digital Economy: Future Directions, which he has described as a road map for Australia’s digital economy future. Amongst other things, in (sort of, kinda, a bit) similar vein to the EU’s Commissioner Neely, the report notes: The digitisation trend is changing customer habits and expectations. Increasingly, they expect an on demand experience, that is, the ability to enjoy what they want, when.. Read More

Confidentiality, unconscionability and contract

Telstra and Optus have an interconnect agreement, in part to regulate how callers originating from one network get delivered to the other, charges and the like. Optus successfully sued Telstra for misusing Optus’ confidential information under the agreement: information about call traffic between the two networks. (You should look at that judgment as it illustrates the two-edged nature of many definitions of confidential information.) In this part of the fight,.. Read More

IceTV talk

Trying out a new experiment: For such use as they may be, here are the slides for Monday’s talk to the VSCL on IceTV I’m afraid there’s no audio. IceTV The New Law of Copyright in Australia View more presentations from Warwick Rothnie. Here too is the link to RailCorp’s complaints about the Sydney Transit iPhone app. Another way of trying to deal with (part of) the problem.

Productivity Commission on parallel imports (books)

The Productivity Commission’s report has been released: Copyright Restrictions on the Parallel Importation of Books Key Points Media Release On a quick view, now they recommend repeal after a 3 year transition period: Whereas the Commission’s draft report had proposed a partial liberalisation of the import restrictions, following further evidence, the final report recommends their repeal, with the industry having a period of three years to adjust before the changes.. Read More

Help Help I don’t have a copyright

The State of Victoria passed regulations requiring licensed taxis to be fitted with an alarm system that played the message (and only played the message) “Help-Help-Driver-in-Danger-Call-Police-Ph.000” It would appear the wording of the particular message derived from Pacific. Pacific sought licence fees in the Copyright Tribunal pursuant to the Crown Use provisions. That proceeding was adjourned pending resolution of court proceedings to determine if copyright subsisted in the text of.. Read More

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