Commentary and case law from the Commercial Bar Association's finest.
Consumer Law – replica of “Fearless Girl” statute – discussion of “not insignificant number” criterion – copyright – whether copyright licence granted – inducing breach of contract by artist – limitations on artist’s rights – tort of passing off – trade mark infringement – whether ‘FEARLESS GIRL’ used as a mark.
Trade Marks – Infringement – Interlocutory Injunction – Serious issue to be tried – balance of convenience – application granted.
Trade marks – appeal from judgment dismissing trade mark infringement claim – inherently adapted to distinguish – deceptive similarity
Consumer law – orders for relief – declarations – injunction granted – damages.
Costs – apportionment of costs
Copyright – artistic works – work of “artistic craftsmanship” – innocent infringement – additional damages – Passing off and ACL misleading or deceptive conduct claims – accessorial liability
Practice and procedure – costs – costs of interlocutory applications to amend patent application
Patents – appeal on opposition to grant – pre-“Raising the Bar” – novelty – inventive step – utility
Patents Act– infringement and validity – variable speed limit signs – whether method or product claims – whether functional limitations were to capabilities or had to be present at all times – Crown use defence– innocent infringement– prior use defence– lapsed patent defence – lack of novelty (and section 24) and inventive step
Trade marks – extension of protection in Australia to IRDA for trade mark MONSTER STRIKE in classes 9 and 41 – appeal from decision of Registrar – reputation of appellant’s marks including M icon and MONSTER ENERGY – whether reliance on s 42(b) and ss 18 and 29 of the ACL for opposition adds anything to reliance on s 60
Patents – amendment of patent application by court – power to order amendment after reasons given as to why patent invalid – section 102, whether narrowing amendments to claims resulted in an invention different from that described in the specification
Patents – strike out application re particulars of lack of utility – discovery re lack of utility
Practice and procedure – application for dismissal of proceedings – failure to prosecute proceedings with due diligence – consideration of the overarching purpose in s 37M of the Federal Court of Australia Act – application by corporate applicant to dispense with requirement to be legally represented – termination of four successive lawyers
Trade marks – registration – opposition – appeal under s 56 of the Trade Marks Act against decision of the Registrar of Trade Marks allowing registration of the mark FREEZEFRAME PROTOX – whether a ground of opposition to registration of the marks is established pursuant to ss 42(b), 44, 58, 59, 60 or 62A of the Act
Trade marks – cross-claim for removal from the Register of Trade Marks for non-use pursuant to s 92(4)(b) of the Act – cross-claim for rectification of the Register of Trade Marks to cancel registration of BOTOX trade mark pursuant to s 88(1) of the Act – defensive trade marks