Archives for April 2015

Franchisors’ end of term arrangements – valuation of goodwill versus risk of competition

Section 23 of the Competition and Consumer (Industry Codes – Franchising) Regulation 2014 (Cth)(Code) provides that a restraint of trade clause in a Franchise Agreement (Agreement) is of no effect, if the Franchisee gives notice of its desire to extend the Agreement and the Franchisor elects not to do so.

A restraint of trade clause can be used in a variety of commercial contracts, however it is generally thought of being more readily enforceable where goodwill is involved.  The Explanatory Statement to Select Legislative Instrument No. 168, 2014 issued by the Minister for Small Business in relation to the Code states clearly that the intention of Clause 23 is to ‘provide relief in special circumstances where a franchisee, through no fault of its own, has not had its franchise extended by a franchisor’. [Read more…]

Reverse engineering of software – what are the legal boundaries?

Reverse engineering of software can be defined as ‘to copy the function of a program, without having access to the original source code’.  In Australia copyright subsists in original works including computer programs as defined in section 10 of Copyright Act 1968 (Cth)(Act).  The term ‘computer program’ is defined in section 10 of the Act as as a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.    The Act and its interpretation by Australian courts provides some protection against reverse engineering of software, but only to a point, beyond which it is necessary to have end users agree to specific terms in order to protect the intellectual property contained within the program. [Read more…]

Misleading conduct costs Coles a lot of dough: ACCC v Coles Supermarkets Australia Pty Limited [2015] FCA 330

A further update to our articles published on 23 July 2014 and 30 September 2014.


On 18 June 2014, The Court concluded that Coles had engaged in misleading conduct, contravening a number of provisions of the ACL arising from Coles’ use of certain expressions including “Baked Today, Sold Today” and “Freshly Baked” in advertising bread products which had been par-baked off-site, snap frozen and then baked to completion. [Read more…]

Dallas Buyers Club gets preliminary discovery

The Federal Court of Australia in Dallas Buyers Club LLC v iiNet Limited [2015] FCA 317 recently granted an application for preliminary discovery made by companies associated with the film “Dallas Buyers Club”. The applicants were seeking the identity of a number of Australian Internet users who allegedly infringed copyright in the film by downloading and making it available for download on the Internet via the BitTorrent peer-to-peer file sharing protocol. [Read more…]

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