2009

Ambush Marketing DownUnder

Leave a Comment / Enforcement, Trade marks / / / , , ,

The Government has published Frontier Economics’ review of the ambush marketing legislation provided by the Olympic Insignia Protection Act 1987 (Cth) and the Melbourne 2006 Commonwealth Games (Indicia and Images) Protection Act 2005 (Cth) (the AML).

According to the Executive Summary, key points include:

  • The Review is of the opinion that the AML has provided tangible benefits to the organisers, and that these have a direct (although difficult to quantify) bearing on their ability to raise revenue from licensing. 
  • The AML appears to have provided greater clarity regarding the existence and scope of the organisers’ entitlements.
  • There doesn’t appear to have been many, if any, ‘blatant’ examples of ambush marketing  for some time.
  • Concerns were identified, particularly in the Olympic Insignia Protection Act, with the definition of ‘commercial purposes’ and the requirement to show that an accused use would be seen by a reasonable person as suggesting sponsorship like support.

While the review found the legislation largely working as intended, it did not some qualifications:

(1) whether apparent reductions in ambush marketing are due to factors outside the AML;

(2) whether NSOs and other peak bodies have been unduly hampered in their ability to attract their own sponsorships; and

(3) whether sufficient income generated from the rights granted under the AML has been returned to sport. 

Read the report here (pdf).

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ALAI and the Tercentenary of Copyright

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ALAI’s 2009 (biennial) congress takes place in London in June this year, to commemorate the 300th anniversary of the Statute of Anne (that shouldn’t stop you also letting off fireworks on 10 April 2010).

Details here.

Unfortunately, we in Australia no longer have a national group; but it is still possible to be an individual member or just go to the conferences etc.

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Apologies

Leave a Comment / Because I felt like it / /

Sorry about the break in transmission – some glitch in a database somewhere meant that only files up to 13 August were showing up.

Thanks to Jacques, everything seems to be back on an even keel now.

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Not using a trade mark

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An Austrian company, Maselli, sells clothing under its brand WELLNESS.  It has the trade mark registered for clothing in class 25 and also in classes 16 (for printed matter) and class 32 (for alcohol free drinks).  It gave away bottles of a non-alcoholic drink bearing the WELLNESS brand, but never sold the drinks independently of the clothing.

On application by Silberquelle, a producer of alcohol free drinks,  the ECJ has ruled that affixing the mark to goods, which are given away free of charge to purchasers of other goods, is not genuine use of the trade mark for the free goods in the EU.

That is, it should follow that Maselli’s mark will be revoked.

Here, of course, there has to be use as a trade mark and the use (as a trade mark) has to be in good faith see s. 92 and Gallo v Lion Nathan

As the IPKat asks, what happens to a newspaper’s trade mark where the newspaper is given away free?

Ever since the old Irish case about “Golden Pages” TM, where a classified directory was given away for free, but contained paid advertising, we have thought the trade mark was being used in the course of trade (or in more modern parlance, in good faith as a trade mark).  Wonder if that’s still the case?

C-495/07 Silberquelle GmbH v Maselli-Strickmode GmbH

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IPRIA, ISPs and (Copryight) authorisation

Leave a Comment / Copyright / / / , ,

IPRIA is hosting a free seminar on ISPs liability for authorising copyright infringement.

Impressive range of panellists. Possibly the only hotter topic in copyright is what is a reproduction of a substantial part. Score a CPD point!

5 February 2009 at 5.30 for 6.00pm.

Details via here.

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The USA, China and the WTO dispute

Leave a Comment / Enforcement, Trade / / / , , , , ,

The dispute resolution panel’s decision in the USA’s complaint against China’s rules on enforcement, “Measures affecting the protection and enforcement of intellectual property rights” (DS362) (background here) has been published.

There’s a range of commentary around the web.  The  IPKat reproduces the conclusions and, applying sophistaKatted Euro reading between the lines, scores it at 3-all.

Intellectual Property Watch’s summary here.  According to the USTR, the US won.

Not sure what has happened to the “market access” dispute?

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Spam Act fine

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Optus has been fined AUD$110,000 under the Spam Act 2003 for sending out 20,000 electronic messages without adequate sender identification.

Peter Black carries the report.

On a different note: why doesn’t Australia have laws against junk faxes?

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3 strikes – across the Tasman

Leave a Comment / Copyright / / / ,

Apparently, New Zealand’s copyright law has been amended to require ISPs to terminate the account of a “repeat infringer”.

Excess Copyright has the links.

Our law – Copyright Act s 116AG – already provides that a Court may order the “carriage service provider” to terminate a specified account.

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Patent destruction policy

Leave a Comment / Patents / / / , , , , , ,

In Australia (since the famous McCabe v BAT case (overturned on appeal), of course, we know them as “document retention” policies.

In the US, a Federal District Court judge has ruled that Rambus cannot enforce a patent relating to DRAM technology as a result of its policy, implemented in 1998, of destroying documents where the court held Rambus should have known litigation was likely.

A different judge, in the District of Northern California, apparently took the opposite view.

An appeal has been foreshadowed.

Read further here.

Lid dip: Peter Clarke.

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Microsoft, the EU, Internet Explorer and tying again

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On 15 January 2009, the European Commission commenced new proceedings against Microsoft alleging that Microsoft was abusing its dominant position in the market by tying Internet Explorer to the Windows operating system:

According to the Commission:

The evidence gathered during the investigation leads the Commission to believe that the tying of Internet Explorer with Windows, which makes Internet Explorer available on 90% of the world’s PCs, distorts competition on the merits between competing web browsers insofar as it provides Internet Explorer with an artificial distribution advantage which other web browsers are unable to match. The Commission is concerned that through the tying, Microsoft shields Internet Explorer from head to head competition with other browsers which is detrimental to the pace of product innovation and to the quality of products which consumers ultimately obtain. In addition, the Commission is concerned that the ubiquity of Internet Explorer creates artificial incentives for content providers and software developers to design websites or software primarily for Internet Explorer which ultimately risks undermining competition and innovation in the provision of services to consumers.

Apparently, Microsoft has 8 weeks to reply.

Microsoft’s initial press release notes that the Statement of Objections served by the Commission specifically states that the US settlement with the DOJ in 2002 (Wikipedia here) does not make the inclusion of Internet Explorer in Windows lawful under EU law.  Other than that it is fairly bland, as you would expect, stating that “We are committed to conducting our business in full compliance with European law.”

Read the Commission’s Press Release. Read Microsoft’s here or here.

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