Mallesons IP Whiteboard - Latest news in copyright, trade mark and patents law from Australia and around the world

It’s a beautiful day in Melbourne, and you are at the MCG watching the Boxing Day Test.  There is a lull in the run-scoring and you gaze into the sky, only to see the famous Holden blimp flying overhead.  You might not have felt under attack, but you may nonetheless have been the victim of ambush marketing.  read more »

In a decision last week, the European Court of Justice (ECJ) found that the marketing of certain copycat perfumes infringed the trade marks of the manufacturer of the genuine perfumes, even though the copycat perfumes were marketed under a completely separate name.  According to the ECJ’s decision in L’Oreal v Bellure, the use of signs similar to registered marks can take “unfair advantage” of the registered marks (contrary to the EU Trade Marks Directive), even where there is:

•  no likelihood of confusion; and
•  no likelihood of causing detriment to the registered marks, or causing economic harm to the registered owner.

Following our previous post on the registration of a mobile premium services (MPS) industry code, the recent Federal Court case of ACCC v AMV Holding Ltd [2009] FCA 605 illustrates why such a code is necessary to protect consumers from unscrupulous practices in the MPS sector.  read more »

How much would you expect to pay if you were found guilty of downloading and sharing music files on the internet?  According to a jury sitting in the Minnesota District Court last week, you'll be looking at approximately US$80,000 per song.  In a landmark case brought by the Recording Industry Association of America (RIAA) and major music labels, a jury found Ms Jammie Thomas-Rasset guilty of infringing copyright in 24 songs using the Kazaa peer-to-peer file-sharing network.  The jury awarded the claimants a total of US$1.92m in damages, a surprisingly high verdict given that the relatively small level of damage attributable to the infringement.   read more »

Since last Saturday (14 June), users of the popular social networking site have been able to to customise the URL of their profile pages, making them more distinctive and easier to remember.  In this post, we explore some of the ways Facebook has offered protection to trade mark owners and consider what you need to do to protect and strengthen your brand on Facebook.  More after the jump.  read more »

Did Swiss chocolatier, Lindt, act in “bad faith” when it registered its famous chocolate Easter bunny - complete with red ribbon and miniature bell - as a 3D trade mark in Europe?  No final decision as yet.  However, according to the European Court of Justice, Lindt are likely to be deemed to have acted in “bad faith”, if it can be shown that they knew others were producing similar bunnies and filed the application with an intention to prevent those third parties from doing so in the future.  read more »

Updated: Mallesons has published an alert giving further analysis of the decision - available here. The Federal Court has dismissed a case brought by well-known confectionary company Mars against an Australian confectionary importer, Sweet Rewards (for whom we acted).  Justice Perram dismissed the application brought by Mars in relation to the packaging of a chocolate coated malt ball product known as "Malt Balls", which it alleged was too similar to the packaging of its popular Maltesers products. His Honour awarded costs to Sweet Rewards.   read more »

Bavaria.  Home to Oktoberfest, the most famous beer festival in the world.  Host to over 240 breweries.  Origin of the famous Bavarian brewing technique.  So would plastering the word “BAVARIA” in bold letters across a beer label indicate both that the beer comes from Bavaria, and that the beer has qualities specific to Bavarian beer?  And is there a real difference between a label containing the words “BAVARIAN BEER” and one containing the words “BAVARIA BEER”?  read more »

Two recent decisions of the Full Federal Court and the NSW Supreme Court have displaced the long-held presumption that final witness statements are protected by legal professional privilege.  The witness statements in question were witness statements that had been served on a party, though were not ultimately relied upon at trial.  These cases suggest that it may now be far easier to obtain final witness statements that have been served in related proceedings.   read more »

A highly controversial French law that gave an administrative authority the power to cut off the internet access of people who had allegedly engaged in online file sharing, has been knocked back as being unconstitutional.  read more »