The case concerned whether personal financial advice was provided in the context of phone calls designed to encourage consolidation of super accounts. The High Court found that it was, and in the process shed light on the definitions of “financial advice” and “personal advice” in the Corporations Act.
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
Allergan Australia Pty Ltd v Self Care IP Holdings Pty Ltd – Part 3: removal or cancellation of marks
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
Trade marks – infringement claim under s 120 of the Trade Marks Act 1995 (Cth) – consumer law – misleading or deceptive conduct – torts – passing off – whether director should be held personally liable – Therapeutic Goods Act 1989 (Cth) – whether respondents infringed applicants’ BOTOX marks by using PROTOX as a trade mark
Trade marks – infringement claim under s 120 of the Trade Marks Act – consumer law – misleading or deceptive conduct – torts – passing off – whether director should be held personally liable – cross-claim for removal from Register for non-use – opposition – appeal under s 56 of the Trade Marks Act – BOTOX and PROTOX
In a decision with broader public law implications, the High Court held that, absent actual loss or injury, successful plaintiffs can expect no more than an award of nominal damages to vindicate an infringement of their rights, and that ‘vindicatory damages’ have no place in Australian common law.
This note addresses Justice Beach’s findings on the applicant’s liability case in TPT Patrol Pty Ltd v Myer Holdings Ltd.