Well, it seems the 10th anniversary of IPwars has come and gone! Yes, the first IPwars blogpost (on the now defunct iBlog system) was back on 4 October 2004, inspired by Marty Schwimmer, Denise Howell, Evan Brown, Ernie the Attorney and others who were originally “Between Lawyers” but have since moved on to podcasting, video casting and other, bigger things.
In the meantime, my article on Trade Marks and Parallel Imports has been published in Volume 22 No. 1 of the Competition & Consumer Law Journal starting at p. 54. It is essentially an overview of the Federal Court’s case law on s 123(1) to date.
In the same issue of the CCLJ, you will also find articles by:
- David Brennan “Shifting shades of grey – International price discrimination and Australian copyright” law starting at p. 1; and
- Matthew Taylor and Arlen Duke “Refocussing the parallel import debate” starting at p. 54.
I am afraid the online versions of these papers are behind the LexisNexis paywall.
Happy anniversary! and thanks for stopping by, especially those of you who have left a comment.
Big week for parallel imports last week:
(1) the US Supreme Court declared US law applies a doctrine of international exhaustion for copyright material
(2) Adobe, Apple and Microsoft fronted the Australian Parliament to explain why digital “things” cost so much more in Australia than elsewhere (i.e., the USA).
Apple’s defence said, amongst other things, it was the price it had to pay to the owners of Australian copyright – lovely chart here. Other reports (with more analysis) here and here (which may be challenges Apple’s explanation a bit for its own products).
That didn’t really work as an explanation for Adobe, which gets lambasted here.
Perhaps, just maybe, treating digital downloads as a single global market might lead to some lowering of prices, but the beauty of digital delivery (from the content owner’s perspective) is that you can set your price and the customer can buy or not.
Is there a link between (1) and (2)?
In his analysis, Prof. Goldman sets out a number of reasons why he thinks Kirtsaeng, while it may provide some good news in terms of lower prices, will have only a short term effect.
(I suppose we can trumpet the fact that our technological protection measure protections don’t extend to protecting region coding (here and here), although I do wonder how one would prove that was the purpose of the (ac)tpm.)
Marty (The Trademark Blog) extracts from the 11th Circuit’s ruling in Davidoff v CVS, where the parallel importer was found liable for infringement by removing the UPC codes (which, of course, are not put there to detect parallel import leaks, but in case of product recall requirements).
He appends the text of the decision.
Off the top of my head, I don’t think that argument would help Davidoff down here as s 123 operates on consent in respect of ‘similar goods’. The 1994 Act, which never came into force and was repealed by the 1995 Act did make an attempt to deal with quality issues in s , but that ultimately fell be the wayside.
What chance of arguing misleading or deceptive conduct under s 52?