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A commercial IP perspective on the new unfair contract terms protection under the ACL

Sat, 07/22/2017 - 22:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Nicole Murdoch and Sandy Zhang BENNETT & PHILP LAWYERS
Volume: 30
Year: 2017

Key points • The amended unfair contract terms provisions under the Australian Consumer Law (ACL) is now in effect and apply to all standard form small business contracts entered into on or after 12 November 2016. • The amendment may have significant impact upon terms common to intellectual property (IP) contracts such ...

Death and the maiden — probate and copyright

Sat, 07/22/2017 - 22:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Therese Catanzariti 13 WENTWORTH SELBORNE CHAMBERS
Volume: 30
Year: 2017

Dealing with the estate of a deceased person who has been involved in creative industries — as an executor, as a beneficiary, or as a person seeking an assignment or a licence — requires an understanding of both copyright and probate. Takeaway tips • Any person dealing with intangible rights ...

Four strikes and you’re out: Adidas covering their bases with trade marks protection

Sat, 07/22/2017 - 22:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: William van Caenegem and Violet Atkinson BOND UNIVERSITY
Volume: 30
Year: 2017

Takeaway tips • When considering whether a registered mark is used “as a mark” or merely as a decorative feature, evidence that consumers have become accustomed to seeing trade marks in the same position on products of that kind will support a finding of use as a mark. • Even ...

Patent prosecution strategy in the ASEAN region: understanding the ASPEC and GPPH programs

Sat, 07/22/2017 - 22:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Brittany Howard and Marcus Caulfield FB RICE
Volume: 30
Year: 2017

The Association of Southeast Asian Nations (ASEAN) region is receiving an ever-increasing number of new patent filings. This article discusses how filing ASEAN patent applications through the ASEAN Patent Examination Cooperation (ASPEC) and/or Global Patent Prosecution Highway (GPPH) programs can streamline the prosecution of related patent applications in several, if ...

The productivity of patents: a review

Sat, 07/22/2017 - 22:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Richard Hoad CLAYTON UTZ
Volume: 30
Year: 2017

Key points • The recent Productivity Commission report in relation to intellectual property arrangements has proposed some significant changes to Australia’s patent laws. • The proposals include the abolition of the innovation patent system, a change to the test for inventive step and reduced patent term extensions for pharmaceuticals. • ...

Post-industrial economies invest in intangibles to protect competitive advantage

Thu, 06/15/2017 - 00:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Paula Natasha Chavez KNOWLEDGE LAW OFFICES
Volume: 30
Year: 2017

Takeaways • Australians have a recurring annual intellectual property (IP) deficit of $3.25 billion. • Australians patent at a very low rate both locally and globally. • As it stands, Australians are unable to sell into the worldwide knowledge-based economy. Introduction Dr Francis Gurry, the Australian Director-General of the World Intellectual Property ...

Protecting intellectual property rights: interlocutory injunctions

Thu, 06/15/2017 - 00:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Peter Wallis AICKIN CHAMBERS and Lucy Davis OWEN DIXON CHAMBERS WEST
Volume: 30
Year: 2017

Key takeaways Intellectual property (IP) owners need to act swiftly if they intend to seek an interlocutory injunction. They need to turn their mind to the usual considerations as to whether the application will be successful (in particular whether they can establish a prima facie case and that the balance ...

TRIPS Agreement amended: will we see increased access to patented medications?

Thu, 06/15/2017 - 00:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Rhys Williamson and Anna Feros DIBBSBARKER
Volume: 30
Year: 2017

Abstract Earlier this year, the World Trade Organization (WTO) agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) was formally amended after years of anticipation. WTO members now have legal certainty they can export patented pharmaceutical products made under a compulsory licence to countries confronted with limited domestic capacity. ...

Reconciling unjustified threat provisions in IP legislation with the “genuine steps” obligation

Thu, 06/15/2017 - 00:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Melissa McGrath and Lucy Hartland DIBBSBARKER
Volume: 30
Year: 2017

Abstract For intellectual property (IP) litigants, there is tension between the unjustified (also known as groundless) threat provisions in intellectual property legislation and the obligations under the Civil Dispute Resolution Act 2011 (Cth) (CDR Act) to take “genuine steps” to resolve a dispute. Although the issue has yet to receive much ...

WIN v Nine: lessons in contract interpretation for the new media age

Thu, 06/15/2017 - 00:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Michael Swinson and Helena Kanton KING & WOOD MALLESONS
Volume: 30
Year: 2017

With the local launch of Amazon Prime Video in December 2016 and the recent relaunch of Foxtel’s online-streaming offering (now called Foxtel Play), Australian consumers are increasingly spoiled for choice as to how they access television content. Today, broadcast television networks must compete with a raft of online media platforms, and ...

Storm Group v Storm Int Group Pty Ltd

Tue, 05/16/2017 - 00:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Shauna Ross NIGEL BOWEN CHAMBERS
Volume: 30
Year: 2017

Introduction This article discusses the recent decision of the Trade Marks Office in Storm Group v Storm Int Group Pty Ltd . 1 Tips and key points • Be aware of which entity or person is, on the face of the evidence, the trade mark user of the trade mark. Consider ...

On your marks

Tue, 05/16/2017 - 00:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Kate Andean BANKI HADDOCK FIORA
Volume: 30
Year: 2017

Practical points • If your athlete client has a personal “brand” worth registering as a trade mark, be imaginative about which mark to protect: what aspects of your client’s personal brand might hold commercial value other than their name or signature — an image, a famous catch cry, a pose ...

Storm clouds over the Pacific: Stone & Wood Group Pty Ltd v Intellectual Property Development Corp Pty Ltd

Tue, 05/16/2017 - 00:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Adrian Chang ALLENS
Volume: 30
Year: 2017

A relatively straightforward trade mark infringement and passing off case, Stone & Wood Group Pty Ltd v Intellectual Property Development Corp Pty Ltd 1 provides some useful analysis of the unjustified threats regime set out in s 129 of the Trade Marks Act 1995 (Cth). Our key takeaway points from this case are ...

The proposed reforms to insolvency laws: great for turning around; not so great for turning off

Tue, 05/16/2017 - 00:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Frederick Finiguerra BANKI HADDOCK FIORA
Volume: 30
Year: 2017

Practice points to note • Some of the proposed reforms to insolvency laws are likely to impact on intellectual property owners and users. • The proposed moratorium on ipso facto clauses potentially undermines the rights of licensors dealing with insolvent licensees. • However, for struggling intellectual property businesses, there is ...

Is traditional IP so yesterday?

Tue, 05/16/2017 - 00:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Steve Collins and Sherman Young MACQUARIE UNIVERSITY
Volume: 30
Year: 2017

Takeaways • Copyright should focus on the creation of value. • Global laws currently concentrate on the process of copying — in a digital world, value is captured elsewhere (eg in actual usage, which can now be measured). • Some uses are not substitutive — and do not detract from ...

Copyright liability and the plight of the innocent intermediary

Wed, 05/03/2017 - 00:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Emily Capill COULTER ROACHE LAWYERS
Volume: 30
Year: 2017

For many people, copyright law is a mystery. Often a person will trade in goods without understanding whether copyright subsists in the subject matter embodied in those goods. While the Copyright Act 1968 (Cth) affords protection to the person who “innocently” engages in conduct which infringes or may infringe copyright, the ...

Re Hoser — a “hands on” case

Wed, 05/03/2017 - 00:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Deborah Jackson ALLENS
Volume: 30
Year: 2017

Take-home points • There is a distinction between a term which is common in the trade and one which is commonly used to directly describe goods or services. For a trade mark to lack capacity to distinguish, it is not necessarily enough to show that it is used as a ...

Same same, but different, but still same — breezy fight for fan design owner

Wed, 05/03/2017 - 00:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Donna Patane MACDONNELLS LAW
Volume: 30
Year: 2017

Top tips • The view of the informed user is not necessarily the view of an expert. In Hunter Pacific Int Pty Ltd v Martec Pty Ltd 1 ( Hunter Pacific ), the experts focused on the differences between the products in exact measurements; however, the court held that exact measurements ...

Proposed changes to the Copyright Act — who’s in the safe harbour?

Wed, 05/03/2017 - 00:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Adrian Lawrence and Mary-Cate Byrne BAKER & MCKENZIE
Volume: 30
Year: 2017

Synopsis This article looks at the Copyright Amendment (Disability Access and Other Measures) Bill 2016 (the Bill) in relation to its proposed amendments to the safe harbour regime. These amendments are expected to mean that, for the first time in Australia, certain online service providers, including search engines, will be ...

Fair enough? How technology and the law shape creative mashups

Wed, 05/03/2017 - 00:00
Journal/Newsletter: Australian Intellectual Property Law Bulletin (newsletter)
Author: Steve Collins and Sherman Young MACQUARIE UNIVERSITY
Volume: 30
Year: 2017

Takeaways • Copyright was established to provide incentives for creativity, including transformative activities such as mashups and remixes. • Fair use is often seen as a mechanism to help balance private and public interests; but • Adoption of fair use by Australia may not legitimise mashups as other forces may ...