Pagone J has awarded Pokémon $1 in damages and 70% of its costs from Redbubble for misleading or deceptive conduct and copyright infringement. An interesting aspect of the case is that Redbubble’s implementation of a notice and take down scheme under the DMCA didn’t save it from liability, but did influence the ruling on remedies.
The Full Court also indicated a substantially expanded role for the test of substantial identity in stating that Pham Global’s trade mark was substantially identical with Insight Clinical’s.
Filing a trade mark application by the wrong person invalidates the resulting registration
Following on from the earlier post, the Full Court did, however, dismiss ACER’s appeals against Besanko J’s rulings that: Dr Hart owned the copyright in the SOQH, even though it was created while he was employed by the Department of Education; and The assignment of the right to sue for past infringements was valid. The ruling on the right to sue for past infringements is particularly important as it is.. Read More
It turns out that the Registrar does have power to undo an assignment of a registered trade mark that has been registered wrongly. A Mr Brailsford was the registered owner of the Peel Away trade mark for paint stripping preparations, TM No. 741047. He died in 2008. On 23 Setember 2010, trade mark attorney McInnes filed an application to register an assignment of the trade mark to Mediaquest. On 8.. Read More
Last year, IPwars reported on Hammerschlag J’s ruling that arbitrators under the Commercial Arbitration Acts 1984 (here and here (repealed and replaced by a 2010 Act)e.g.) can settle disputes about (1) the ownership of improvements under a technology licence agreement and (2) the licence fees payable if the technology be exploited in various ways in the future. The arbitrator has now made an award finding that the patents owned by Lloyd.. Read More
If there were any doubt about it, the Full Federal Court has confirmed that the person opposing the registration of a trade mark bears the onus of proving a successful ground of opposition on appeal to the Court. (As a side note, I think this is the new Chief Justice’s first IP decision, at least since joining this Court.) The Food Channel Pty Ltd (Channel) had applied to register TM.. Read More
While on the subject of Mars and darkened conference rooms, Men at Work have been found to infringe Larrikin’s copyright in Kookaburra Sits on the Old Gum Tree. It would seem (from newspaper reports) that 2 bars were a substantial part – shades of the old Colonel Bogey newsreel case. The video on the Age’s website has the clips of every kid’s favourite folk song and that flute riff. Richard.. Read More
Selected microblog posts from the past week: RT @VogeleLaw: Found: Mary Beth Peter’s testimony (via @cathygellis – thanks!) http://bit.ly/Cijau #gbs_hearing [US Copyright Register opposes Google Book Settlement] Google Book in the EU? http://ff.im/-7OYfA RT @MegLG: A Billion Dollar Test of the DMCA Safe Harbors in Viacom v YouTube http://ow.ly/om66 via Cyberlaw Cases RT @michaelgeist: Microsoft wins stay of injunction on Word. Case arises from patent claim by Toronto’s i4i.http://bit.ly/oDmLU IP Think Tank Blog looks.. Read More
In its last ever IP judgment, the House of Lords restored Matthew Fisher’s claim to a declaration that he owned 40% of the copyright in Whiter Shade of Pale, after the Court of Appeal found his claim barred by delay. IPKat has an extensive post and explanation. As summarised by IPKat, their Lordships focused on the fact that Mr Fisher was seeking a declaration and not an injunction. In doing.. Read More