The WTO’s “decision” on plain packaging for cigarettes: will alcohol be next?

Pursuant to the Tobacco Plain Packaging Act 2011 (“the Act”), tobacco companies in Australia are required by law to sell their products using a generic drab dark brown packaging that features large, aesthetically-confrontational health warnings. The intention is to make cigarettes unattractive to smokers. There is also a requirement for the inclusion on packaging of […]

Kelloggs sues Australian tennis player over “Special K”

On 9 May 2017, American cereal manufacturer Kellogg Company commenced proceedings against a company owned by Australian professional tennis player Thanasi Kokkinakis, apparently in respect of Mr Kokkinakis’ use of the brand “Special K”. It seems that Mr Kokkinakis wishes to use the brand “Special K” in respect of tennis equipment and tennis attire, as […]

Whose House Is It? Universal City Studios LLC v Philip Gorecki [2017] ATMO 18

For readers of a certain, mature age, love them or hate them, the National Lampoon movies formed a significant part of the 1980’s movie heritage (dare I say ‘culture’?). The movies included performances by John Belushi, John Candy, Beverly D’Angelo and, of course, Chevy Chase. The 1978 movie, National Lampoon’s Animal House (Animal House), which the […]

The High Price of Flagrant Conduct

The High Price of Flagrant Conduct Most legal practitioners have the principles of damages drilled into them as law students – damages are compensatory in nature and designed to place the aggrieved party back into the position they would be in if the breach had not occurred. As with most rules, there are exceptions. Section […]

Whatever happened to software source code agreements?

Back in the early 2000s, when instructed to draft agreements relating to the deployment of software, technology lawyers tended to deliver a cache of three documents: a software license agreement, a software maintenance agreement, and a software source code escrow agreement. Software source code escrow agreements had their genesis in days when small developers were […]

The Curse of Red Star Logos

Stars are logos which have long been in use and which have very positive connotations – stars are, after all, “up”. And the colour red is also very popular for logos, signifying many positive connotations, particularly in many Asian countries where red is a lucky colour. But perhaps the combination of the two elements – […]

A quick guide to notarisation in Australia

Notarial services are increasingly rare in Australia. Most notarial services in Australia involve documents required for use in foreign countries. Notarial services are legal acts which allow a written record to be used for official or legal purposes. The range of, and requirements for, notarial services are varied and often depend upon the requirements of […]

Wine snobbery and the heritage value of the Queen Adelaide wine brand: Make Wine Pty Ltd v Modern Ancient Brands Pty Ltd [2017] ATMO 17 (24 February 2017)

On 22 December 2014, Modern Ancient Brands Pty Ltd (the non-use applicant) filed an application for the removal from the Australian Trade Mark Register TM 196073 (Trade Mark), which had been registered under class 33 wines on 22 July 1965. The non-use applicant sought to have the Trade Mark removed from the Register as per […]

MONSTER BATTLE: Monster Energy Company v Disney Enterprises, Inc [2017] ATMO 2 (10 January 2017)

Disney Enterprises, Inc (Disney) applied for the trade mark MONSTERS UNIVERSITY for various goods and services including clothing and a wide range of food products (the goods) applied for in classes 25, 29 and 30.  MONSTERS UNIVERSITY will be familiar to anyone with a child under 12 for reasons we explain below.  Monster Energy Company […]

Contractual Drafting Issues for Machine Learning Agreements (Part 1)

Legal industry media would have us believe that lawyers are lamenting the rise of artificial intelligence and how it will upend the legal industry. But with artificial intelligence implementation comes artificial intelligence contracts. At least for the moment, these contracts are being drafted by humans.   Much of artificial intelligence deployment which is customer facing, […]

The Green-Mundine Live-Stream Copyright Debate

On 3 February 2017, two well-known boxers, Danny Green and Anthony Mundine, had their second and, most likely, final grudge match. Television broadcaster Foxtel touted the fight to subscribers, charging $59.95 to watch the match through Foxtel’s subscription television service. During the fight, Queensland mechanic Darren Sharpe held his smartphone up to his television screen […]

The problem with shape trade marks in Australia: Clipsal Australia Pty Ltd v Clipso Electrical Pty Ltd (No 3) [2017] FCA 60 (3 February 2017)

On 3 February 2017, the lengthy court battle between Clipsal Australia Pty Ld and Clipso Electrical Pty Ltd, along with its director Abdul Kader (Mr Kader), resulted in a favourable outcome for the applicant. The CLIPSAL Marks Originally used for an adjustable one-size metal conduit fitting, the CLIPSAL word mark has an established reputation in […]

Incidental possession not seizure – section 21(2) PPSA and the (ir)relevance of bad faith

The recent case of Flown Pty Ltd v Goldrange Pty Ltd [2016] WASC 419 provides an interesting discussion point on: o        the effect of section 21(2)(b) Personal Property Securities Act 2009 (Cth) (the Act) on possession by seizure of collateral, o        the strict requirement in section 24(1) of the Act for actual possession of collateral […]

Arcs of Confusion Amidst Trade Channels: Crescent Funds Management (Aust) Ltd v Crescent Capital Partners Management Pty Limited [2017] FCAFC 2

These proceedings concerned two corporations trading in the financial services industry both using brands incorporating the term “Crescent”. Both parties filed evidence in the proceedings at first instance that each were referred to by others (particularly the media) and in their own communications to the public simply as “Crescent.” The applicants in the proceedings at […]

Surveying our clients – December 2016

Buying legal services is ordinarily a grudge purchase. No one is especially happy about it except for the lawyers. Lawyers themselves don’t ordinarily have much of a dashboard in respect of client satisfaction other than whether an invoice is paid. Soliciting feedback is a task which comes with trepidation. Kicking over rocks can lead to […]

Gathering evidence of the conduct of recidivist cybersquatters: NZ Directories IP Limited v Domforce Ltd

Many UDRP complaints are filed either with the World Intellectual Property Organisation (WIPO) in Geneva, or the National Arbitration Forum (NAF). For .nz domain names, however, complaints are filed through the .nz Domain Name Commission (DNC) in Wellington. But many the principles which domain name lawyers will be familiar with from WIPO and NAF UDRP […]

Sleeker, faster, cheaper: IP litigation under the New Federal Court of Australia Intellectual Property Practice Notes (25 October 2016)

The Federal Court of Australia has implemented innovative ways of dealing with interlocutory processes, especially in the field of intellectual property. The new IP Practice Note takes effect from 25 October 2016. Some important new issues for practitioners come out of this: a. There is now a “Intellectual Property NPA” (“national practice area”), under a […]

Federal ministers love WhatsApp. But what does the law say about it?

Revelations this week that the Australian Prime Minister Malcolm Turnbull and cabinet ministers (including a specific Defence-related WhatsApp group) are using Facebook’s messaging system WhatsApp for confidential discussions have raised issues around cybersecurity. The use of WhatsApp by government officials also raises legal issues. There are over eighty pieces of legislation around Australia dealing with […]