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Infringing a registered design

war — Tue, 08 Dec 2009 08:27:11 +0000

Back in October, Jessup J found Chiropedic's design for a mattress and base (registered under the 1906 Act) valid and infringed, by only 2 of a number of Radburg's competing mattresses. The first point of interest is the impact of a statement of novelty. A second point of interest is the impact of trade variants or "features commonly used in the trade". Thirdly, his Honour ruled on the costs to be taken into account in the course of an account of profits. This was the representation in the design (ADR 127723) There was the usual statement of monopoly, limiting the design to the features of shape or configuration. Unusually, there was also a statement of novelty:

Novelty is claimed in the shape and configuration of the upper layer of the mattress portion of the mattress and base as indicated by the beading as shown in the representations.

Chiropedic (the design owner) contended that novelty or originality of its design was not limited by this statement and, even if it were, validity and infringement still fell to be assessed by consideration of the design as a whole citing, in support, the judgment of Davies and Whitlam JJ in Richsell v Khoury at [7]. Jessup J reviewed the cases referred to in Richsell, but discovered that they did not actually deal with it. His Honour found considerably greater assistance in the Franki Report which had led to the introduction of the concept:

On the other hand we were of the opinion that the Registrar should be given power to require a ‘statement of novelty’ to be lodged. By ‘statement of novelty’ we mean a statement dealing with the features of a design that may be said to provide the basis for the design being new or original. For example, if in a design for a chair the significant feature is in the shape of the two front legs and attention is drawn to this fact in a statement of novelty, while there would be no infringement of the design unless the infringing article satisfied the tests for infringement of the chair as a whole, nevertheless it is reasonable to assume that, in testing the novelty and originality of the design, attention would be directed to the two front legs and that this feature of the design would be given particular weight in testing infringement, although an infringement could not be proved unless the relevant tests were satisfied in respect of the whole chair. (my emphasis)

and Slade LJ's consideration in Sommer Allibert of the similar concept in the UK legislation (the latter of which had not been referred to in Richsell or Polyaire). Accordingly, Jessup J held:

[22] .... The argument which Davies and Whitlam JJ rejected in that case was that, in making the comparison required by s 17(1), one should look only at the features for which novelty had been claimed. It is one thing to say that the registered owner should not be permitted to use his or her own statement of novelty for the purpose of shutting the court’s eyes to the appearance of a complete design, and to do so to his or her own advantage. It is another thing altogether to say that the registered owner should not be held to such a statement of novelty when the court comes to consider what aspects of the registered design are new or original. The court’s eyes would then be open to the complete design, of course, but it should, in my view, assess that design against the prior art with a particular emphasis upon those features that the registered owner himself or herself, at the point of registration, considered to be novel.

Paying particular attention to the features identified in the Statement of Novelty, his Honour went on to find the design valid over the prior art. For example, it had a relatively square look where the horizontal surface met the upper line of beading, while the prior art was relatively curved. Similarly, the proportion of the upper layer to the lower lower of the mattress was significant over the prior art. These findings had particular significance when it came to considering infringement. One of Radburg's designs was found to be identical to the registered design. A second was an obvious imitation. A number of others, however, escaped liability as they either had similar convex curvature to the prior art rather than the square look of the registered design or the upper layer of the mattress was a significantly smaller proportion of the mattress; many of them also had quite different ribbing. One striking visual difference was discounted in the comparisons: the mattresses in some of the prior art had three layers, not two; so that the mattress could be flipped over and used. The evidence established, however, that the omission or inclusion of the bottom or third layer was a variant commonly resorted to in the trade. Another feature, an "inward set" was apparently visible to those in the trade on fastidious inspection, but his Honour found it did not strike the eye and was an immaterial variation. Finally, on the principles to be applied in the account, Jessup J ruled that the respondent's bills of materials should be used (where available) on the principle that they reflected as closely as possible the actual costs incurred and so, where the evidence showed that margins earned on different product lines were not uniform, the respondent would not generate a windfall profit. Chiropedic Bedding Pty Ltd v Radburg Pty Ltd [2009] FCA 1163 So far as I can see, no application for leave to appeal has been filed.

The patent was valid, but not infringed

war — Mon, 30 Nov 2009 09:19:07 +0000

Foster J has ruled that Bitech's patent for an apparatus that simulates log flames or coal fire in electric or gas fired domestic room heaters is valid, but not infringed. An essential feature of the patent was that the simulated flames resulted from reflected light, however, the alleged infringements used directly projected light, not reflected light and consequently did not infringe. The novelty attack failed because the relevant prior art did not possess all the features claimed. The attack on obviousness failed because s 7(3) was not available - the complete specification was filed before the 1990 Act came into force and so the Alphapharm rules were all that was relevant. Of potentially greater interest, if there had been infringement, Foster J would have found the importer and retailer (Bunnings) were engaged in a common design. Somewhat bizarrely, on of the respondents denied it had imported the allegedly infringing products, but led no evidence on the point. As a result, Foster J has foreshadowed some consequences in costs for putting the applicant to proof on this point. Bitech Engineering v Garth Living Pty Ltd [2009] FCA 1393

2nd round consultations on IP reform in Australia

war — Fri, 27 Nov 2009 08:32:50 +0000

IP Australia has published a second round of consultation paper (pdf) on its proposals for reform of intellectual property laws and procedures in Australia. Topics covered include:

Getting the Balance Right

Exemptions to Patent Infringement

Resolving patent opposition proceedings faster

Resolving trade mark opposition proceedings faster

Resolving divisional applications faster
Getting the Balance Right
Exemptions to Patent Infringement
Resolving patent opposition proceedings faster
Resolving trade mark opposition proceedings faster
Resolving divisional applications faster

Submissions are due by 12 February 2010. In a move definitely to be encouraged, the proposed drafting instructions have also been published (pdf) for comment. (Links to the "Word" version as well as the pdf version and the previous round of consultation papers via here.) Some further papers will be published soon on:

Flexible Search and Examination
Streamlining the Patent Process

Linking should infringe?

war — Fri, 03 Jul 2009 09:56:27 +0000

Judge Posner (of the 7th Circuit Court of Appeals in the USA) writing extra-judicially on his blog has stirred up a maelstron in the blogosphere with a typically thoughtful and provocative post contending that linking to websites should be copyright infringement. (At the time of writing, there are only 211 comments!) Less contentiously (at least in terms of blogosphere reaction), Prof Becker's reaction is that newspapers are doomed:

That the Internet is a more efficient provider of news and opinion than newspapers is seen in the fact that hardly anyone under age 40 now reads papers. Readership is also declining among older persons ....

Although the printed newspaper industry is doomed, and will be missed by those of us that remember newspapers in their heyday, they are being replaced by good substitutes in the form of blogs, social networks like Facebook and Twitter, online news gathering by various groups, including newspapers, and other electronic forms of communication. People in democracies will continue to have access to independent and often quite accurate, reports on events in their own countries and most other parts of the world.

from The Social Cost of the Decline of Newspapers? Becker Marty Schwimmer rounds up some of the reaction to Judge Posner. Judge Posner has seized on what is widely seen as a crisis in the newspaper industry. That crisis has led Rupert Murdoch and Associated Press, in particular, to start waging a public relations war against Google. The difficulty is, if they really don't want the links (and all the incoming traffic), they can block them quite simply. Read Danny Sullivan's thoughtful expose of the threadbare nature of these Emperors' clothes: esp. here and here. (ps Of course, here in Australia, you do have to be careful you are not linking to websites that contain infringing content themselves - Cooper v Universal.)

,000 (USD) per download

war — Fri, 19 Jun 2009 05:37:50 +0000

In case your newsfeed hasn't beeped you, the jury in Minnesota has awarded the record companies US,920,000 against Jammie Thomas for her 24 infringing downloads. That's right, ,000 per infringement. The original award, which the judge quashed "sua sponte", was "only" 0,000. Presumably, there are going to be some interesting motions "non obstante veredicto"? Evan Brown has some links. The Age (lid dip Matt Bromley). Howard predicts (hopes?) this is the end for record companies.

IPRIA seminar on patent infringementi

war — Sun, 10 May 2009 22:30:14 +0000

IPRIA (Ass. Prof. Beth Webster and Kimberlee Weatherall) is holding a lunch time seminar reporting on the results of their survey of patent infringement in Australia:

in Melbourne on 9 June 2009; and
in Brisbane on 10 June,

at the Blake Dawson offices in those cities. According to the blurb:

One of the great unknowns of patent policy is how much infringement actually goes on, and how much of that infringement leads to enforcement of an informal or formal kind. IPRIA recently conducted a representative survey of over 3700 Australian inventors in order to estimate the prevalence of (alleged) infringement and what formal and informal steps were taken to stop the copying activities. We present these findings along with a discussion of what can be done to improve the efficacy of patent enforcement in Australia. The seminar is free of charge. More information and links to the registration pages for each event here.

Working a patent for regulatory approvals

war — Wed, 06 May 2009 10:29:28 +0000

Patently-O considers a new Federal Circuit case in the USA dealing with the scope of s 271(e)(1) - a defence to infringement by working the patent to prepare regulatory data. It would appear that the defence should now apply in proceedings against imports before the ITC. Patents Act 1990 (Cth) s 119A (introduced with effect from 25 October 2006 following ACIP's report) permits such activity where the working:

is for purposes of having a therapeutic pharmaceutical product included in the Australian Register of Therapeutic Goods;
or a similar foreign regulatory approval.

Although working for a foreign regulatory approval may take place only in the supplementary protection period (see e.g. ACIP on experimental use p. 44 (pdf)). See now Alphapharm Pty Ltd v H Lundbeck A/S [2008] FCA 559 at [643]ff. IP Australia is considering extending this: see paragraphs 9 and 17 of IP Australia's Consultation Paper on experimental use (pdf) [NOTE: submissions should be in by 8 May 2009. Submissions on the Getting the Balance Right paper (pdf) are also due by then.] WIPO's Standing Committee on Patents has a study paper on exceptions and limitations as an area of increased focus.

Dough Vo = no go

war — Sun, 03 May 2009 09:19:07 +0000

Arnott's complained (e.g. here and here) that Krispy Kreme's new dooughnut, the Dough Vo, infringed its trade mark for the Iced Vo Vo. You probably had those marshmallow and jam concoctions inflicted on you as a kid. But the trade mark, No 864, which is just for VO VO has been registered since 1906 for biscuits. Krispy Kreme was reported in the press as saying it wasn't going to back down - on legal advice, no less -

Arnott's gave the Australian arm of the doughnut chain until 5pm (AEST) on Friday (April 24) to stop using the name and to undertake not to use similar names in the future.

However, Krispy Kreme Australia CEO John McGuigan said after taking legal advice, the company had decided to continue selling the Iced Dough-Vo. Next thing we know, however, the headlines read "Dough-Vo bows to Vo-Vo" and "Krispy Kreme backs down on Vo-Vo boo-boo". One interesting question for trade mark students: to what extent can you look at what the Dough-Vo looks like when considering the trade mark infringement question? In this case, you probably get rather more latitude because the infringement would arise under s 120(2). Another thing to worry about. How often do you see (or write in your letters):

we have taken legal advice and our advice is that it is not the case (that trademark was breached)

Has Mr Krispy Kreme just waived privilege in his legal advice? Have a look e.g. at Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 esp. at [4], [10] and [32]. Lid dip: James McDougall for word of Krispy Kreme's retreat.

Beery barefeet on appeal

war — Fri, 27 Mar 2009 09:59:58 +0000

Curiouser and Curiouser! The Full Court has affirmed the trial judge's finding that Gallo's registration of the trade mark BAREFOOT for wine should be removed for non-use. However, the Full Court has overturned his Honour's finding that Lion Nathan's use of Barefoot Radler for beer did not infringe that registration (before it was removed). Consequently, the Full Court has found that Lion Nathan did infringe the registration up until the date the registration was removed from the Register. Gallo acquired the trade mark by assignment. Neither it nor the assignor had ever consciously used it in Australia. However, some wine bearing the trade mark had made their way into Australia for resale via, presumably, a parallel importer. (More detailed summary of the facts from the decision at 1st instance here and here - the internal links are broken I'm afraid.) On the question of whether or not Gallo (or its predecessor) had used the trade mark as a trade mark, the Full Court said:

34 In our opinion, the conclusion of the primary judge was correct. The contention of Gallo that an owner of a registered trademark uses the mark in Australia simply because goods to which the owner (or an authorised user) has affixed the mark are traded in the ordinary course of trade in Australia should be rejected.

and

38 .... The essence of Gallo's case in this matter is this is all that is necessary to establish use in Australia by the manufacturer or producer. However, that is not what the Full Court said. Projection by the manufacturer of goods bearing its mark into the course of trade in Australia was the other factor which, together with the display, sale or offering for sale, led to the conclusion that there had been use of the mark in Australia by the manufacturer and its owner. We think fairly plainly what the Full Court was saying was that for there to be use in Australia of the mark by the owner, the owner of the mark must have engaged in conduct of some type which the owner might reasonably contemplate would result in dealings with its goods marked with its mark in Australia while the goods were in the course of trade.

As a matter of interpretation, the Full Court concluded, contrary to Lion Nathan, that the trade mark could be expunged only from the date the Court made the order under s 101. This was particularly significant because the Full Court, as noted above, found that Lion Nathan's use infringed the trade mark while it was registered. First, the Full Court rejected the trial judge's finding that beer and wine were not goods of the same description:

72 The primary judge accepted that there were a number of factors which supported the view that Lion Nathan's beer and wine were goods at the same description. They were both alcoholic beverages and generally distributed by this same major wholesale distributors. The beer was intended to be an appealing alternative to wine and in developing the product, Lion Nathan deliberately set out to attract people who did not drink beer. Indeed it was developed with the deliberate objective of enticing consumers who previously drank wine but not beer. Producers of alcoholic beverages are no longer confined to the production of beer, as opposed to wine, and large producers of alcoholic beverages now produce a range of products and market themselves as doing so. Companies which were once brewers now market and distribute a range of products including beer, wine, spirits, cider and non-alcoholic drinks. Wine and beer are now frequently distributed by the same retailers. We agree that these matters point, and in our opinion point convincingly, to Lion Nathan's beer and wine being goods of the same description.

73 The considerations which led his Honour to reach the opposite conclusion are, in our opinion, of materially less significance. The first, which concerned the origin of the goods, focused on the manner of manufacture of beer on the one hand and wine on the other. While this clearly establishes that they are not the same goods, it is unlikely that this difference would be significant to the consuming public if, as his Honour found, large producers of alcoholic beverages produce a range of products. Additionally it is important to bear in mind that this issue is being considered in the more general context of whether consumers might see the goods as having the same trade origin: Southern Cross at 606. The same can be said of the next consideration relied on by his Honour, namely the specific manner of sale in restaurants on the one hand and retail outlets on the other. If large producers of alcoholic beverages are producing a range of products then the fact that the wine might be sold in a slightly different way would not be a difference of significance to the consuming public who may come to consider the trade origins of Lion Nathan's beer. The next consideration was the manner in which beer is consumed, that is drunk for its refreshing qualities, and not, like wine, consumed in a "sipping fashion". For our part, we doubt this is a relevant consideration. Nor do we think the last consideration, the detailed corporate structure of Lion Nathan, is of any real significance.

Then, the Full Court upheld the trial judge's finding that Lion Nathan's BAREFOOT RADLER trade mark was deceptively similar to Gallo's trade mark. Finally, the Full Court rejected Lion Nathan's attempt to rely on the (rarely used) proviso to s 120(2)(b) which provides:

However, the person is not taken to have infringed the trade mark if the person establishes that using the sign as the person did is not likely to deceive or cause confusion.

The Full Court foreshadowed that this was a tough requirement to hurdle:

76 .... However, any conclusion about deceptive similarity would usually inform consideration of whether the actual use was likely to deceive or cause confusion. In a sense, an affirmative answer to the question of whether the alleged infringing mark was deceptively similar would be the starting point. If it was, then it would, in many instances, render it more likely (though not inevitable) that the actual use of the allegedly infringing mark was likely to deceive or cause confusion. Also relevant, in our opinion, would be the matters considered in determining whether the alleged infringer's goods are of the same description as the goods in respect of which the registered mark is registered.

Lion Nathan had not satisfied this requirement here. The facts that the usage was on beer, the beer was packaged in six packs and in retail stores from the "beer" section did not help:

77 .... The use of the image of a bare foot with the words "BAREFOOT RADLER" would be more likely to reinforce the significance or prominence of the word "BAREFOOT". The fact that the allegedly infringing mark was on beer packaged in the way described does not, in our opinion, tell against the likelihood that a person looking at beer packaged in this way would think that the beer originated from Gallo. If, in a retail liquor outlet, there was beer bearing the trade mark "BAREFOOT RADLER" where the word "RADLER" was the description of a type of beer and also wine with the trade mark "BAREFOOT" immediately followed by a description of the type of wine (by reference to grape type), then there is, in our opinion, little room to doubt that it is likely many would view the former as originating from the producer of the latter.

The matter will be remitted to the trial judge to deal with remedies. Wonder what the damages will be? So, it would seem you should bring and conclude your non-use action before you launch the product. That will require a client with a very long term commitment to the brand! E & J Gallo Winery v Lion Nathan Australia Pty Limited [2009] FCAFC 27 (Moore, Edmonds and Gilmour JJ)

Is copying enough to infringe Down Under?

war — Tue, 20 Jan 2009 09:49:07 +0000

The Full Court (Lindgren, Goldberg and Bennett JJ) has allowed the appeal in Elwood v Cotton On. So, for example, contrary to the trial Judge's ruling, Elwood's copyright in this: [caption id="attachment_489" align="aligncenter" width="450" caption="Elwood New Deal T-shirt"][/caption] was infringed by this: [caption id="attachment_490" align="aligncenter" width="450" caption="Cotton On Moscow T-shirt"][/caption] First, the Full Court agreed with the trial Judge that Elwood's t-shirt design was properly classified as an artistic work and not a literary work nor both an artistic work and a literary work: the semiotic component - the words and numbers - was too slight for the design to be viewed as an artistic work. As an aside, the Full Court did not express a view of whether or not the ruling in Anacon that a circuit diagram was both an artistic work and a literary work represented the law in Australia. Secondly, the Full Court reiterated that infringement was to be tested in 3 steps:

(1) to identify the work in suit in which copyright subsists;

(2) to identify in the alleged infringing work the part taken (ie derived or copied) from the work in suit; and

(3) to determine whether the part taken constitutes a substantial part of the work in suit.

At the stage of identifying the work in suit, the Full Court ruled that it was the work as a whole which needed to be identified. The Full Court held, however, that the trial Judge had erred by excluding from consideration at this stage those matters which her Honour found were matters of "idea" rather than "expression". Cotton On was found, both at trial and on appeal, to have blatantly copied from Elwood's work. As a comparison of the work and Cotton On's designs above shows what Cotton On took was the the layout, positioning of elements and the overall "look and feel". What it didn't take were the actual words, symbols and images. The trial Judge had found this significant, ruling that:

The text and symbols matter. The colours matter. Similarly, unlike Finkelstein J in Autocaps [a reference to Autocaps (Aust) Pty Ltd v Pro-Kit Pty Ltd (1999) 46 IPR 339], I cannot say that what is conveyed by the two prints is the same – it is not.

Having found the error identified above, the Full Court disagreed. Their Honours found that the layout, selection , arrangement and style of the various elements were a substantial part of the copyright work and so there had been an infringing reproduction. The means by which the Full Court arrived at this conclusion is significant. The Full Court had appeared to accept that there may be a role for "ideas" and "expression" at the infringement stage of the inquiry. However:

35 While the idea/expression dichotomy is basic to the law of copyright, it is a difficult one, particularly in the case of artistic works. What principles are to govern the demarcation? The "idea" underlying a copyright work can plausibly be identified at different levels of generality. The higher the level of abstraction, the more that is left as protectable expression. The lower the level of abstraction, the less that is left as protectable expression. ....

....

37 A difficulty associated with the idea/expression dichotomy is that the choice of the level of abstraction is subjective and uncertain. Mr Simons’s identification of the underlying concept (see [21] above) was not conclusive.

In contrast, the Full Court preferred a rather more mechanistic approach. The layout, etc., "look and feel" were substantial because the evidence showed that far more effort went into achieving them:

70 Mr Gillott said that he and Mr Simons tried to achieve a "balance" of the six elements on the front and the five elements on the back, and the proportion they bore to one another. He estimated that there were at least 10 to 15 printouts by Mr Simons on which he (Mr Gillott) wrote his comments and his "scribbles". He said that the entire process took a good two weeks, but no more than three weeks, from the time he handed over his initial draft to Mr Simons.

71 Mr Gillott described Elwood’s design procedure. He said that the form and shape was settled upon first, and the "type elements", "wording and text elements", last. It was after that two to three week period that attention was directed to finalising the wording and text. Mr Gillott said that "once we’re down to inputting the words that we would like in the art, that happens quite quickly". He explained that it took no more than two days to put those elements into the design, because he "already had the ideas to carry "Raging Bulls" through", and the expression "Durable by Design" was Elwood’s "core logo". He said that once those elements were introduced, he signed off on the NewDeal print and it took no more than two days for production to commence.

....

73 Mr Gillott’s evidence recounted above, which was not contradicted, was to the effect that by far the greater part of the effort, skill and time involved in designing of the NewDeal T-shirt was devoted to layout rather than with the choice of words and numerals. (emphasis supplied)

Two weeks versus two days may seem, perhaps, a rather quantitative approach to the qualitative assessment of judgment and degree which the traditional inquiry into a substantial part is acknowledged to require. It also turned out that Elwood's design was in fact a development of its earlier 96ers T. Unfortunately, an image of that earlier design is not included in the judgment. Their Honours explained, however, that the New Generation design involved the following differences:

74 There are obvious similarities between the 96ers and the NewDeal design but the NewDeal design contained artistic expressions of an underlying idea that were not found in the 96ers. Mr Gillott and Mr Simons introduced the following features:

• curved sections;

• some changes to the presentation of the bull’s head trade mark;

• new letter forms;

• accentuation of the overall V shape;

• a balance of the six elements on the front and the five elements on the back; and

• changes in the proportions borne by the respective elements to one another.

By taking these features of the NewDeal design or layout, Cotton On reproduced something that was or included a substantial part of that design or layout.

Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd [2008] FCAFC 197

Review cases handed down

war — Tue, 08 Dec 2009 08:27:11 +0000

Novelty is claimed in the shape and configuration of the upper layer of the mattress portion of the mattress and base as indicated by the beading as shown in the representations.

and Slade LJ's consideration in Sommer Allibert of the similar concept in the UK legislation (the latter of which had not been referred to in Richsell or Polyaire). Accordingly, Jessup J held:

The patent was valid, but not infringed

war — Mon, 30 Nov 2009 09:19:07 +0000

2nd round consultations on IP reform in Australia

war — Fri, 27 Nov 2009 08:32:50 +0000

IP Australia has published a second round of consultation paper (pdf) on its proposals for reform of intellectual property laws and procedures in Australia. Topics covered include:

Getting the Balance Right

Exemptions to Patent Infringement

Resolving patent opposition proceedings faster

Resolving trade mark opposition proceedings faster

Resolving divisional applications faster
Getting the Balance Right
Exemptions to Patent Infringement
Resolving patent opposition proceedings faster
Resolving trade mark opposition proceedings faster
Resolving divisional applications faster

Flexible Search and Examination
Streamlining the Patent Process

Linking should infringe?

war — Fri, 03 Jul 2009 09:56:27 +0000

,000 (USD) per download

war — Fri, 19 Jun 2009 05:37:50 +0000

IPRIA seminar on patent infringementi

war — Sun, 10 May 2009 22:30:14 +0000

IPRIA (Ass. Prof. Beth Webster and Kimberlee Weatherall) is holding a lunch time seminar reporting on the results of their survey of patent infringement in Australia:

in Melbourne on 9 June 2009; and
in Brisbane on 10 June,

at the Blake Dawson offices in those cities. According to the blurb:

Working a patent for regulatory approvals

war — Wed, 06 May 2009 10:29:28 +0000

is for purposes of having a therapeutic pharmaceutical product included in the Australian Register of Therapeutic Goods;
or a similar foreign regulatory approval.

Dough Vo = no go

war — Sun, 03 May 2009 09:19:07 +0000

Arnott's gave the Australian arm of the doughnut chain until 5pm (AEST) on Friday (April 24) to stop using the name and to undertake not to use similar names in the future.

we have taken legal advice and our advice is that it is not the case (that trademark was breached)

Beery barefeet on appeal

war — Fri, 27 Mar 2009 09:59:58 +0000

and

However, the person is not taken to have infringed the trade mark if the person establishes that using the sign as the person did is not likely to deceive or cause confusion.

The Full Court foreshadowed that this was a tough requirement to hurdle:

Lion Nathan had not satisfied this requirement here. The facts that the usage was on beer, the beer was packaged in six packs and in retail stores from the "beer" section did not help:

Is copying enough to infringe Down Under?

war — Tue, 20 Jan 2009 09:49:07 +0000

(1) to identify the work in suit in which copyright subsists;

(2) to identify in the alleged infringing work the part taken (ie derived or copied) from the work in suit; and

(3) to determine whether the part taken constitutes a substantial part of the work in suit.

....

In contrast, the Full Court preferred a rather more mechanistic approach. The layout, etc., "look and feel" were substantial because the evidence showed that far more effort went into achieving them:

....

• curved sections;

• some changes to the presentation of the bull’s head trade mark;

• new letter forms;

• accentuation of the overall V shape;

• a balance of the six elements on the front and the five elements on the back; and

• changes in the proportions borne by the respective elements to one another.

By taking these features of the NewDeal design or layout, Cotton On reproduced something that was or included a substantial part of that design or layout.

Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd [2008] FCAFC 197

Review cases handed down

war — Tue, 08 Dec 2009 08:27:11 +0000

Novelty is claimed in the shape and configuration of the upper layer of the mattress portion of the mattress and base as indicated by the beading as shown in the representations.

and Slade LJ's consideration in Sommer Allibert of the similar concept in the UK legislation (the latter of which had not been referred to in Richsell or Polyaire). Accordingly, Jessup J held:

ipwars.com » infringement

war — Tue, 08 Dec 2009 08:27:11 +0000

Novelty is claimed in the shape and configuration of the upper layer of the mattress portion of the mattress and base as indicated by the beading as shown in the representations.

and Slade LJ's consideration in Sommer Allibert of the similar concept in the UK legislation (the latter of which had not been referred to in Richsell or Polyaire). Accordingly, Jessup J held:

The patent was valid, but not infringed

war — Mon, 30 Nov 2009 09:19:07 +0000

2nd round consultations on IP reform in Australia

war — Fri, 27 Nov 2009 08:32:50 +0000

IP Australia has published a second round of consultation paper (pdf) on its proposals for reform of intellectual property laws and procedures in Australia. Topics covered include:

Getting the Balance Right

Exemptions to Patent Infringement

Resolving patent opposition proceedings faster

Resolving trade mark opposition proceedings faster

Resolving divisional applications faster
Getting the Balance Right
Exemptions to Patent Infringement
Resolving patent opposition proceedings faster
Resolving trade mark opposition proceedings faster
Resolving divisional applications faster

Flexible Search and Examination
Streamlining the Patent Process

Linking should infringe?

war — Fri, 03 Jul 2009 09:56:27 +0000

,000 (USD) per download

war — Fri, 19 Jun 2009 05:37:50 +0000

IPRIA seminar on patent infringementi

war — Sun, 10 May 2009 22:30:14 +0000

IPRIA (Ass. Prof. Beth Webster and Kimberlee Weatherall) is holding a lunch time seminar reporting on the results of their survey of patent infringement in Australia:

in Melbourne on 9 June 2009; and
in Brisbane on 10 June,

at the Blake Dawson offices in those cities. According to the blurb:

Working a patent for regulatory approvals

war — Wed, 06 May 2009 10:29:28 +0000

is for purposes of having a therapeutic pharmaceutical product included in the Australian Register of Therapeutic Goods;
or a similar foreign regulatory approval.

Dough Vo = no go

war — Sun, 03 May 2009 09:19:07 +0000

Arnott's gave the Australian arm of the doughnut chain until 5pm (AEST) on Friday (April 24) to stop using the name and to undertake not to use similar names in the future.

we have taken legal advice and our advice is that it is not the case (that trademark was breached)

Beery barefeet on appeal

war — Fri, 27 Mar 2009 09:59:58 +0000

and

However, the person is not taken to have infringed the trade mark if the person establishes that using the sign as the person did is not likely to deceive or cause confusion.

The Full Court foreshadowed that this was a tough requirement to hurdle:

Lion Nathan had not satisfied this requirement here. The facts that the usage was on beer, the beer was packaged in six packs and in retail stores from the "beer" section did not help:

Is copying enough to infringe Down Under?

war — Tue, 20 Jan 2009 09:49:07 +0000

(1) to identify the work in suit in which copyright subsists;

(2) to identify in the alleged infringing work the part taken (ie derived or copied) from the work in suit; and

(3) to determine whether the part taken constitutes a substantial part of the work in suit.

....

In contrast, the Full Court preferred a rather more mechanistic approach. The layout, etc., "look and feel" were substantial because the evidence showed that far more effort went into achieving them:

....

• curved sections;

• some changes to the presentation of the bull’s head trade mark;

• new letter forms;

• accentuation of the overall V shape;

• a balance of the six elements on the front and the five elements on the back; and

• changes in the proportions borne by the respective elements to one another.

By taking these features of the NewDeal design or layout, Cotton On reproduced something that was or included a substantial part of that design or layout.

Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd [2008] FCAFC 197

Review cases handed down

war — Mon, 30 Nov 2009 09:19:07 +0000

ipwars.com » infringement

war — Tue, 08 Dec 2009 08:27:11 +0000

Novelty is claimed in the shape and configuration of the upper layer of the mattress portion of the mattress and base as indicated by the beading as shown in the representations.

and Slade LJ's consideration in Sommer Allibert of the similar concept in the UK legislation (the latter of which had not been referred to in Richsell or Polyaire). Accordingly, Jessup J held:

The patent was valid, but not infringed

war — Mon, 30 Nov 2009 09:19:07 +0000

2nd round consultations on IP reform in Australia

war — Fri, 27 Nov 2009 08:32:50 +0000

IP Australia has published a second round of consultation paper (pdf) on its proposals for reform of intellectual property laws and procedures in Australia. Topics covered include:

Getting the Balance Right

Exemptions to Patent Infringement

Resolving patent opposition proceedings faster

Resolving trade mark opposition proceedings faster

Resolving divisional applications faster
Getting the Balance Right
Exemptions to Patent Infringement
Resolving patent opposition proceedings faster
Resolving trade mark opposition proceedings faster
Resolving divisional applications faster

Flexible Search and Examination
Streamlining the Patent Process

Linking should infringe?

war — Fri, 03 Jul 2009 09:56:27 +0000

,000 (USD) per download

war — Fri, 19 Jun 2009 05:37:50 +0000

IPRIA seminar on patent infringementi

war — Sun, 10 May 2009 22:30:14 +0000

IPRIA (Ass. Prof. Beth Webster and Kimberlee Weatherall) is holding a lunch time seminar reporting on the results of their survey of patent infringement in Australia:

in Melbourne on 9 June 2009; and
in Brisbane on 10 June,

at the Blake Dawson offices in those cities. According to the blurb:

Working a patent for regulatory approvals

war — Wed, 06 May 2009 10:29:28 +0000

is for purposes of having a therapeutic pharmaceutical product included in the Australian Register of Therapeutic Goods;
or a similar foreign regulatory approval.

Dough Vo = no go

war — Sun, 03 May 2009 09:19:07 +0000

Arnott's gave the Australian arm of the doughnut chain until 5pm (AEST) on Friday (April 24) to stop using the name and to undertake not to use similar names in the future.

we have taken legal advice and our advice is that it is not the case (that trademark was breached)

Beery barefeet on appeal

war — Fri, 27 Mar 2009 09:59:58 +0000

and

However, the person is not taken to have infringed the trade mark if the person establishes that using the sign as the person did is not likely to deceive or cause confusion.

The Full Court foreshadowed that this was a tough requirement to hurdle:

Lion Nathan had not satisfied this requirement here. The facts that the usage was on beer, the beer was packaged in six packs and in retail stores from the "beer" section did not help:

Is copying enough to infringe Down Under?

war — Tue, 20 Jan 2009 09:49:07 +0000

(1) to identify the work in suit in which copyright subsists;

(2) to identify in the alleged infringing work the part taken (ie derived or copied) from the work in suit; and

(3) to determine whether the part taken constitutes a substantial part of the work in suit.

....

In contrast, the Full Court preferred a rather more mechanistic approach. The layout, etc., "look and feel" were substantial because the evidence showed that far more effort went into achieving them:

....

• curved sections;

• some changes to the presentation of the bull’s head trade mark;

• new letter forms;

• accentuation of the overall V shape;

• a balance of the six elements on the front and the five elements on the back; and

• changes in the proportions borne by the respective elements to one another.

By taking these features of the NewDeal design or layout, Cotton On reproduced something that was or included a substantial part of that design or layout.

Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd [2008] FCAFC 197

Review cases handed down

war — Fri, 27 Nov 2009 08:32:50 +0000

IP Australia has published a second round of consultation paper (pdf) on its proposals for reform of intellectual property laws and procedures in Australia. Topics covered include:

Getting the Balance Right

Exemptions to Patent Infringement

Resolving patent opposition proceedings faster

Resolving trade mark opposition proceedings faster

Resolving divisional applications faster
Getting the Balance Right
Exemptions to Patent Infringement
Resolving patent opposition proceedings faster
Resolving trade mark opposition proceedings faster
Resolving divisional applications faster

Flexible Search and Examination
Streamlining the Patent Process

ipwars.com » infringement

war — Tue, 08 Dec 2009 08:27:11 +0000

Novelty is claimed in the shape and configuration of the upper layer of the mattress portion of the mattress and base as indicated by the beading as shown in the representations.

and Slade LJ's consideration in Sommer Allibert of the similar concept in the UK legislation (the latter of which had not been referred to in Richsell or Polyaire). Accordingly, Jessup J held:

The patent was valid, but not infringed

war — Mon, 30 Nov 2009 09:19:07 +0000

2nd round consultations on IP reform in Australia

war — Fri, 27 Nov 2009 08:32:50 +0000

IP Australia has published a second round of consultation paper (pdf) on its proposals for reform of intellectual property laws and procedures in Australia. Topics covered include:

Getting the Balance Right

Exemptions to Patent Infringement

Resolving patent opposition proceedings faster

Resolving trade mark opposition proceedings faster

Resolving divisional applications faster
Getting the Balance Right
Exemptions to Patent Infringement
Resolving patent opposition proceedings faster
Resolving trade mark opposition proceedings faster
Resolving divisional applications faster

Flexible Search and Examination
Streamlining the Patent Process

Linking should infringe?

war — Fri, 03 Jul 2009 09:56:27 +0000

,000 (USD) per download

war — Fri, 19 Jun 2009 05:37:50 +0000

IPRIA seminar on patent infringementi

war — Sun, 10 May 2009 22:30:14 +0000

IPRIA (Ass. Prof. Beth Webster and Kimberlee Weatherall) is holding a lunch time seminar reporting on the results of their survey of patent infringement in Australia:

in Melbourne on 9 June 2009; and
in Brisbane on 10 June,

at the Blake Dawson offices in those cities. According to the blurb:

Working a patent for regulatory approvals

war — Wed, 06 May 2009 10:29:28 +0000

is for purposes of having a therapeutic pharmaceutical product included in the Australian Register of Therapeutic Goods;
or a similar foreign regulatory approval.

Dough Vo = no go

war — Sun, 03 May 2009 09:19:07 +0000

Arnott's gave the Australian arm of the doughnut chain until 5pm (AEST) on Friday (April 24) to stop using the name and to undertake not to use similar names in the future.

we have taken legal advice and our advice is that it is not the case (that trademark was breached)

Beery barefeet on appeal

war — Fri, 27 Mar 2009 09:59:58 +0000

and

However, the person is not taken to have infringed the trade mark if the person establishes that using the sign as the person did is not likely to deceive or cause confusion.

The Full Court foreshadowed that this was a tough requirement to hurdle:

Lion Nathan had not satisfied this requirement here. The facts that the usage was on beer, the beer was packaged in six packs and in retail stores from the "beer" section did not help:

Is copying enough to infringe Down Under?

war — Tue, 20 Jan 2009 09:49:07 +0000

(1) to identify the work in suit in which copyright subsists;

(2) to identify in the alleged infringing work the part taken (ie derived or copied) from the work in suit; and

(3) to determine whether the part taken constitutes a substantial part of the work in suit.

....

In contrast, the Full Court preferred a rather more mechanistic approach. The layout, etc., "look and feel" were substantial because the evidence showed that far more effort went into achieving them:

....

• curved sections;

• some changes to the presentation of the bull’s head trade mark;

• new letter forms;

• accentuation of the overall V shape;

• a balance of the six elements on the front and the five elements on the back; and

• changes in the proportions borne by the respective elements to one another.

By taking these features of the NewDeal design or layout, Cotton On reproduced something that was or included a substantial part of that design or layout.

Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd [2008] FCAFC 197

Review cases handed down

war — Fri, 03 Jul 2009 09:56:27 +0000

ipwars.com » infringement

war — Tue, 08 Dec 2009 08:27:11 +0000

Novelty is claimed in the shape and configuration of the upper layer of the mattress portion of the mattress and base as indicated by the beading as shown in the representations.

and Slade LJ's consideration in Sommer Allibert of the similar concept in the UK legislation (the latter of which had not been referred to in Richsell or Polyaire). Accordingly, Jessup J held:

The patent was valid, but not infringed

war — Mon, 30 Nov 2009 09:19:07 +0000

2nd round consultations on IP reform in Australia

war — Fri, 27 Nov 2009 08:32:50 +0000

IP Australia has published a second round of consultation paper (pdf) on its proposals for reform of intellectual property laws and procedures in Australia. Topics covered include:

Getting the Balance Right

Exemptions to Patent Infringement

Resolving patent opposition proceedings faster

Resolving trade mark opposition proceedings faster

Resolving divisional applications faster
Getting the Balance Right
Exemptions to Patent Infringement
Resolving patent opposition proceedings faster
Resolving trade mark opposition proceedings faster
Resolving divisional applications faster

Flexible Search and Examination
Streamlining the Patent Process

Linking should infringe?

war — Fri, 03 Jul 2009 09:56:27 +0000

,000 (USD) per download

war — Fri, 19 Jun 2009 05:37:50 +0000

IPRIA seminar on patent infringementi

war — Sun, 10 May 2009 22:30:14 +0000

IPRIA (Ass. Prof. Beth Webster and Kimberlee Weatherall) is holding a lunch time seminar reporting on the results of their survey of patent infringement in Australia:

in Melbourne on 9 June 2009; and
in Brisbane on 10 June,

at the Blake Dawson offices in those cities. According to the blurb:

Working a patent for regulatory approvals

war — Wed, 06 May 2009 10:29:28 +0000

is for purposes of having a therapeutic pharmaceutical product included in the Australian Register of Therapeutic Goods;
or a similar foreign regulatory approval.

Dough Vo = no go

war — Sun, 03 May 2009 09:19:07 +0000

Arnott's gave the Australian arm of the doughnut chain until 5pm (AEST) on Friday (April 24) to stop using the name and to undertake not to use similar names in the future.

we have taken legal advice and our advice is that it is not the case (that trademark was breached)

Beery barefeet on appeal

war — Fri, 27 Mar 2009 09:59:58 +0000

and

However, the person is not taken to have infringed the trade mark if the person establishes that using the sign as the person did is not likely to deceive or cause confusion.

The Full Court foreshadowed that this was a tough requirement to hurdle:

Lion Nathan had not satisfied this requirement here. The facts that the usage was on beer, the beer was packaged in six packs and in retail stores from the "beer" section did not help:

Is copying enough to infringe Down Under?

war — Tue, 20 Jan 2009 09:49:07 +0000

(1) to identify the work in suit in which copyright subsists;

(2) to identify in the alleged infringing work the part taken (ie derived or copied) from the work in suit; and

(3) to determine whether the part taken constitutes a substantial part of the work in suit.

....

In contrast, the Full Court preferred a rather more mechanistic approach. The layout, etc., "look and feel" were substantial because the evidence showed that far more effort went into achieving them:

....

• curved sections;

• some changes to the presentation of the bull’s head trade mark;

• new letter forms;

• accentuation of the overall V shape;

• a balance of the six elements on the front and the five elements on the back; and

• changes in the proportions borne by the respective elements to one another.

By taking these features of the NewDeal design or layout, Cotton On reproduced something that was or included a substantial part of that design or layout.

Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd [2008] FCAFC 197

Review cases handed down

war — Fri, 19 Jun 2009 05:37:50 +0000

In case your newsfeed hasn't beeped you, the jury in Minnesota has awarded the record companies US$1,920,000 against Jammie Thomas for her 24 infringing downloads. That's right, $80,000 per infringement. The original award, which the judge quashed "sua sponte", was "only" $220,000. Presumably, there are going to be some interesting motions "non obstante veredicto"? Evan Brown has some links. The Age (lid dip Matt Bromley). Howard predicts (hopes?) this is the end for record companies.

ipwars.com » infringement

war — Tue, 08 Dec 2009 08:27:11 +0000

Novelty is claimed in the shape and configuration of the upper layer of the mattress portion of the mattress and base as indicated by the beading as shown in the representations.

and Slade LJ's consideration in Sommer Allibert of the similar concept in the UK legislation (the latter of which had not been referred to in Richsell or Polyaire). Accordingly, Jessup J held:

The patent was valid, but not infringed

war — Mon, 30 Nov 2009 09:19:07 +0000

2nd round consultations on IP reform in Australia

war — Fri, 27 Nov 2009 08:32:50 +0000

IP Australia has published a second round of consultation paper (pdf) on its proposals for reform of intellectual property laws and procedures in Australia. Topics covered include:

Getting the Balance Right

Exemptions to Patent Infringement

Resolving patent opposition proceedings faster

Resolving trade mark opposition proceedings faster

Resolving divisional applications faster
Getting the Balance Right
Exemptions to Patent Infringement
Resolving patent opposition proceedings faster
Resolving trade mark opposition proceedings faster
Resolving divisional applications faster

Flexible Search and Examination
Streamlining the Patent Process

Linking should infringe?

war — Fri, 03 Jul 2009 09:56:27 +0000

,000 (USD) per download

war — Fri, 19 Jun 2009 05:37:50 +0000

IPRIA seminar on patent infringementi

war — Sun, 10 May 2009 22:30:14 +0000

IPRIA (Ass. Prof. Beth Webster and Kimberlee Weatherall) is holding a lunch time seminar reporting on the results of their survey of patent infringement in Australia:

in Melbourne on 9 June 2009; and
in Brisbane on 10 June,

at the Blake Dawson offices in those cities. According to the blurb:

Working a patent for regulatory approvals

war — Wed, 06 May 2009 10:29:28 +0000

is for purposes of having a therapeutic pharmaceutical product included in the Australian Register of Therapeutic Goods;
or a similar foreign regulatory approval.

Dough Vo = no go

war — Sun, 03 May 2009 09:19:07 +0000

Arnott's gave the Australian arm of the doughnut chain until 5pm (AEST) on Friday (April 24) to stop using the name and to undertake not to use similar names in the future.

we have taken legal advice and our advice is that it is not the case (that trademark was breached)

Beery barefeet on appeal

war — Fri, 27 Mar 2009 09:59:58 +0000

and

However, the person is not taken to have infringed the trade mark if the person establishes that using the sign as the person did is not likely to deceive or cause confusion.

The Full Court foreshadowed that this was a tough requirement to hurdle:

Lion Nathan had not satisfied this requirement here. The facts that the usage was on beer, the beer was packaged in six packs and in retail stores from the "beer" section did not help:

Is copying enough to infringe Down Under?

war — Tue, 20 Jan 2009 09:49:07 +0000

(1) to identify the work in suit in which copyright subsists;

(2) to identify in the alleged infringing work the part taken (ie derived or copied) from the work in suit; and

(3) to determine whether the part taken constitutes a substantial part of the work in suit.

....

In contrast, the Full Court preferred a rather more mechanistic approach. The layout, etc., "look and feel" were substantial because the evidence showed that far more effort went into achieving them:

....

• curved sections;

• some changes to the presentation of the bull’s head trade mark;

• new letter forms;

• accentuation of the overall V shape;

• a balance of the six elements on the front and the five elements on the back; and

• changes in the proportions borne by the respective elements to one another.

By taking these features of the NewDeal design or layout, Cotton On reproduced something that was or included a substantial part of that design or layout.

Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd [2008] FCAFC 197

Review cases handed down

war — Sun, 10 May 2009 22:30:14 +0000

IPRIA (Ass. Prof. Beth Webster and Kimberlee Weatherall) is holding a lunch time seminar reporting on the results of their survey of patent infringement in Australia:

in Melbourne on 9 June 2009; and
in Brisbane on 10 June,

at the Blake Dawson offices in those cities. According to the blurb:

ipwars.com » infringement

war — Tue, 08 Dec 2009 08:27:11 +0000

Novelty is claimed in the shape and configuration of the upper layer of the mattress portion of the mattress and base as indicated by the beading as shown in the representations.

and Slade LJ's consideration in Sommer Allibert of the similar concept in the UK legislation (the latter of which had not been referred to in Richsell or Polyaire). Accordingly, Jessup J held:

The patent was valid, but not infringed

war — Mon, 30 Nov 2009 09:19:07 +0000

2nd round consultations on IP reform in Australia

war — Fri, 27 Nov 2009 08:32:50 +0000

IP Australia has published a second round of consultation paper (pdf) on its proposals for reform of intellectual property laws and procedures in Australia. Topics covered include:

Getting the Balance Right

Exemptions to Patent Infringement

Resolving patent opposition proceedings faster

Resolving trade mark opposition proceedings faster

Resolving divisional applications faster
Getting the Balance Right
Exemptions to Patent Infringement
Resolving patent opposition proceedings faster
Resolving trade mark opposition proceedings faster
Resolving divisional applications faster

Flexible Search and Examination
Streamlining the Patent Process

Linking should infringe?

war — Fri, 03 Jul 2009 09:56:27 +0000

,000 (USD) per download

war — Fri, 19 Jun 2009 05:37:50 +0000

IPRIA seminar on patent infringementi

war — Sun, 10 May 2009 22:30:14 +0000

IPRIA (Ass. Prof. Beth Webster and Kimberlee Weatherall) is holding a lunch time seminar reporting on the results of their survey of patent infringement in Australia:

in Melbourne on 9 June 2009; and
in Brisbane on 10 June,

at the Blake Dawson offices in those cities. According to the blurb:

Working a patent for regulatory approvals

war — Wed, 06 May 2009 10:29:28 +0000

is for purposes of having a therapeutic pharmaceutical product included in the Australian Register of Therapeutic Goods;
or a similar foreign regulatory approval.

Dough Vo = no go

war — Sun, 03 May 2009 09:19:07 +0000

Arnott's gave the Australian arm of the doughnut chain until 5pm (AEST) on Friday (April 24) to stop using the name and to undertake not to use similar names in the future.

we have taken legal advice and our advice is that it is not the case (that trademark was breached)

Beery barefeet on appeal

war — Fri, 27 Mar 2009 09:59:58 +0000

and

However, the person is not taken to have infringed the trade mark if the person establishes that using the sign as the person did is not likely to deceive or cause confusion.

The Full Court foreshadowed that this was a tough requirement to hurdle:

Lion Nathan had not satisfied this requirement here. The facts that the usage was on beer, the beer was packaged in six packs and in retail stores from the "beer" section did not help:

Is copying enough to infringe Down Under?

war — Tue, 20 Jan 2009 09:49:07 +0000

(1) to identify the work in suit in which copyright subsists;

(2) to identify in the alleged infringing work the part taken (ie derived or copied) from the work in suit; and

(3) to determine whether the part taken constitutes a substantial part of the work in suit.

....

In contrast, the Full Court preferred a rather more mechanistic approach. The layout, etc., "look and feel" were substantial because the evidence showed that far more effort went into achieving them:

....

• curved sections;

• some changes to the presentation of the bull’s head trade mark;

• new letter forms;

• accentuation of the overall V shape;

• a balance of the six elements on the front and the five elements on the back; and

• changes in the proportions borne by the respective elements to one another.

By taking these features of the NewDeal design or layout, Cotton On reproduced something that was or included a substantial part of that design or layout.

Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd [2008] FCAFC 197

Review cases handed down

war — Wed, 06 May 2009 10:29:28 +0000

is for purposes of having a therapeutic pharmaceutical product included in the Australian Register of Therapeutic Goods;
or a similar foreign regulatory approval.

ipwars.com » infringement

war — Tue, 08 Dec 2009 08:27:11 +0000

Novelty is claimed in the shape and configuration of the upper layer of the mattress portion of the mattress and base as indicated by the beading as shown in the representations.

and Slade LJ's consideration in Sommer Allibert of the similar concept in the UK legislation (the latter of which had not been referred to in Richsell or Polyaire). Accordingly, Jessup J held:

The patent was valid, but not infringed

war — Mon, 30 Nov 2009 09:19:07 +0000

2nd round consultations on IP reform in Australia

war — Fri, 27 Nov 2009 08:32:50 +0000

IP Australia has published a second round of consultation paper (pdf) on its proposals for reform of intellectual property laws and procedures in Australia. Topics covered include:

Getting the Balance Right

Exemptions to Patent Infringement

Resolving patent opposition proceedings faster

Resolving trade mark opposition proceedings faster

Resolving divisional applications faster
Getting the Balance Right
Exemptions to Patent Infringement
Resolving patent opposition proceedings faster
Resolving trade mark opposition proceedings faster
Resolving divisional applications faster

Flexible Search and Examination
Streamlining the Patent Process

Linking should infringe?

war — Fri, 03 Jul 2009 09:56:27 +0000

,000 (USD) per download

war — Fri, 19 Jun 2009 05:37:50 +0000

IPRIA seminar on patent infringementi

war — Sun, 10 May 2009 22:30:14 +0000

IPRIA (Ass. Prof. Beth Webster and Kimberlee Weatherall) is holding a lunch time seminar reporting on the results of their survey of patent infringement in Australia:

in Melbourne on 9 June 2009; and
in Brisbane on 10 June,

at the Blake Dawson offices in those cities. According to the blurb:

Working a patent for regulatory approvals

war — Wed, 06 May 2009 10:29:28 +0000

is for purposes of having a therapeutic pharmaceutical product included in the Australian Register of Therapeutic Goods;
or a similar foreign regulatory approval.

Dough Vo = no go

war — Sun, 03 May 2009 09:19:07 +0000

Arnott's gave the Australian arm of the doughnut chain until 5pm (AEST) on Friday (April 24) to stop using the name and to undertake not to use similar names in the future.

we have taken legal advice and our advice is that it is not the case (that trademark was breached)

Beery barefeet on appeal

war — Fri, 27 Mar 2009 09:59:58 +0000

and

However, the person is not taken to have infringed the trade mark if the person establishes that using the sign as the person did is not likely to deceive or cause confusion.

The Full Court foreshadowed that this was a tough requirement to hurdle:

Lion Nathan had not satisfied this requirement here. The facts that the usage was on beer, the beer was packaged in six packs and in retail stores from the "beer" section did not help:

Is copying enough to infringe Down Under?

war — Tue, 20 Jan 2009 09:49:07 +0000

(1) to identify the work in suit in which copyright subsists;

(2) to identify in the alleged infringing work the part taken (ie derived or copied) from the work in suit; and

(3) to determine whether the part taken constitutes a substantial part of the work in suit.

....

In contrast, the Full Court preferred a rather more mechanistic approach. The layout, etc., "look and feel" were substantial because the evidence showed that far more effort went into achieving them:

....

• curved sections;

• some changes to the presentation of the bull’s head trade mark;

• new letter forms;

• accentuation of the overall V shape;

• a balance of the six elements on the front and the five elements on the back; and

• changes in the proportions borne by the respective elements to one another.

By taking these features of the NewDeal design or layout, Cotton On reproduced something that was or included a substantial part of that design or layout.

Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd [2008] FCAFC 197

Review cases handed down

war — Sun, 03 May 2009 09:19:07 +0000

Arnott's gave the Australian arm of the doughnut chain until 5pm (AEST) on Friday (April 24) to stop using the name and to undertake not to use similar names in the future.

we have taken legal advice and our advice is that it is not the case (that trademark was breached)

ipwars.com » infringement

war — Tue, 08 Dec 2009 08:27:11 +0000

Novelty is claimed in the shape and configuration of the upper layer of the mattress portion of the mattress and base as indicated by the beading as shown in the representations.

and Slade LJ's consideration in Sommer Allibert of the similar concept in the UK legislation (the latter of which had not been referred to in Richsell or Polyaire). Accordingly, Jessup J held:

The patent was valid, but not infringed

war — Mon, 30 Nov 2009 09:19:07 +0000

2nd round consultations on IP reform in Australia

war — Fri, 27 Nov 2009 08:32:50 +0000

IP Australia has published a second round of consultation paper (pdf) on its proposals for reform of intellectual property laws and procedures in Australia. Topics covered include:

Getting the Balance Right

Exemptions to Patent Infringement

Resolving patent opposition proceedings faster

Resolving trade mark opposition proceedings faster

Resolving divisional applications faster
Getting the Balance Right
Exemptions to Patent Infringement
Resolving patent opposition proceedings faster
Resolving trade mark opposition proceedings faster
Resolving divisional applications faster

Flexible Search and Examination
Streamlining the Patent Process

Linking should infringe?

war — Fri, 03 Jul 2009 09:56:27 +0000

,000 (USD) per download

war — Fri, 19 Jun 2009 05:37:50 +0000

IPRIA seminar on patent infringementi

war — Sun, 10 May 2009 22:30:14 +0000

IPRIA (Ass. Prof. Beth Webster and Kimberlee Weatherall) is holding a lunch time seminar reporting on the results of their survey of patent infringement in Australia:

in Melbourne on 9 June 2009; and
in Brisbane on 10 June,

at the Blake Dawson offices in those cities. According to the blurb:

Working a patent for regulatory approvals

war — Wed, 06 May 2009 10:29:28 +0000

is for purposes of having a therapeutic pharmaceutical product included in the Australian Register of Therapeutic Goods;
or a similar foreign regulatory approval.

Dough Vo = no go

war — Sun, 03 May 2009 09:19:07 +0000

Arnott's gave the Australian arm of the doughnut chain until 5pm (AEST) on Friday (April 24) to stop using the name and to undertake not to use similar names in the future.

we have taken legal advice and our advice is that it is not the case (that trademark was breached)