Author name: war

A barrister practising mainly in Australian patents, trade marks, copyright and other IP law; lecturer and contributing author to LexisNexis' Copyright & Designs and Patents looseleaf services

New Federal courts structure

Leave a Comment / Enforcement, IP generally / / / , ,

The (Cth) Attorney-General has announced (pdf) that the Federal Magistrates Court will be merged into the Family Law and Federal Courts.

So far as IP generally goes, according to the media release:

The Federal Court will be the single court dealing with all general federal law matters:

The restructured Federal Court will have two tiers;

Appeals and other complex work will generally be heard in the first tier, with shorter, less complex matters redirected to the second tier;

Existing judges of the Federal Court will operate in the first tier;

Federal Magistrates will operate in the second tier;

Upper and lower level Fair Work Divisions, which will hear matters under the Government’s new workplace relations system, will be maintained and provide a one stop shop for employers and employees;

Federal Magistrates appointed to the Federal Court will have expertise in general federal law matters and will continue to be named ‘magistrates’.

Apparently, it is envisaged that the new arrangements will save the Government $7.8million over 4 years. Some of that will be reinvested to improve individuals’ access to the courts.

Access the Report on Future Governance of Federal Family Courts in Australia Report – November 2008 underlying the announcement here (pdf). Consultation paper on the Report here (pdf). Links to the submissions etc. here.

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IPRIA and gene patents

2 Comments / Patents / / / , , ,

Kwanghiu Lim has posted a link to some video podcasts from IPRIA’s seminar on gene patenting here.

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Dough Vo = no go

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

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.

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Dancing on the ceiling

Leave a Comment / Because I felt like it, Copyright / / /

Forty years ago today, Minister Bowen’s Act came into play.

It’s not often you wake up to the 40th birthday of the Copyright Act 1968 which came into force on 1 May 1969. From Note 1: see “Gazette 1969, p. 2543”.

With apologies to some Sergeants.

More dancing on the ceiling here.

Dancing on the ceiling Read More »

Blacklisted!

2 Comments / Because I felt like it / /

I’m having a little bit of a problem accessing IPwars from Chambers at the moment.

It would appear in their wisdom the administrators of vicbar.com.au have blocked access to it! Pity about all the nightlife enhancement and/or Kenyan investment opportunities their spam filter sends to me.

Oh well. I’ve been cybersquatted so I guess I shouldn’t complain about yet another part of the full cyberspace experience.

My apologies.

It’s also affecting my email accounts, so you should ensure you use my vicbar email available from Vicbar’s website here (if you don’t already have it).

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Assigning copyright and material breach reversions

Leave a Comment / Copyright / / / , ,

The author’s of “songs” assigned their respective copyrights to Rive Droite with the latter having an obligation to pay royalties. The assignments included a clause providing that, if Rive Droite remained in material breach for x days after notice, the copyright reverted to the assignor. There was also one of those nice clauses that defined the assignee to include its successors and assigns.

Rive Droite assigned the copyright to Crosstown.

Disputes arose, however, about non-payment of royalties by Rive Droite.

The author assignors gave notice of material breach and Mann J (in the Chancery Division) upheld the automatic reversion of the copyright to them.

Crosstown Music Company v Rive Droite Music Ltd and others [2009] EWHC 600 (Ch) – lid dip IPKat who notes the impact of the reversion clause on the separate and independent national copyrights.

Assigning copyright and material breach reversions Read More »

Google’s sale of keywords could be trade mark use

Leave a Comment / Domain names, Enforcement, Internet, Trade marks / / / , , ,

Well, strictly speaking, the 2nd Circuit in the USA has held that Google’s sale of keywords may be use in commerce.

Rescuecom had sued Google for trademark infringement by selling advertisements (sponsored links) triggered by Rescuecom’s trademark. The District Court had dismissed the claim on the grounds that Google’s conduct was not use in commerce. So now it goes back to the District Court.

Of course, Google’s conduct, if were done in Australia or transacted with a business located in Australia, would be in trade or commerce for the purposes of the Trade Practices Act. In context, however, the nearest analogue under our law is whether or not the conduct might be “use as a trade mark” (in the sense of using the sign in the course of trade) for the purposes of s 120 of the Trade Marks Act.

Professor Goldman considers the ramifications under US law (and the distinguishing of WhenU) here.

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ACTA

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

The USTR has released a 6 page (pdf) outline of issues being dealt with under the proposed ACTA.

Link via Intellectual Property Watch.

The IP Dragon has links to a 48 page document with rather more information.

More tea leaf sifting here.

ACTA Read More »

Domain names and regulatory requirements

Leave a Comment / Domain names, Internet, Trade marks / / / , ,

If the (US) FDA requires you to include information about the risks of using your drug and Google’s AdSense has a 95 character limit, what do you do?

Prof. Manara explores how companies, particularly pharmaceutical companies, are using domain names to ensure that their online presence doesn’t contravene regulatory requirements such as FDA requirements to include information about risks in materials advertising drugs.

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IP forum

Leave a Comment / IP generally / / / , ,

IP Australia is hosting a half day seminar on 

The Economic Climate and its impact on innovation in Australia

in Melbourne on Wednesday 6 May 2009 (rsvp by 29 April).

Speakers include (?):

Leon Allen, President, IPTA

Mathew O’Keefe, President of Australia’s manufacturing association AMPICTA and also employed by Fosters 

Philip Noonan, Director General, IP Australia

Details via here.

IP forum Read More »

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