Not so swole – removal of trade marks for non-use

In the recent case of Swole Gym Wear Group Pty Ltd v Swole O’Clock Ltd [2019] FCA 685, Swole Gym Wear Group (Applicant) applied for an extension of time to file a notice of appeal for the removal of their trade mark 1702160, which was registered for the word “SWOLE” in class 14, from the Register of Trade Marks pursuant to s92(4)(a) of the Trade Marks Act 1995 (Cth)(Act). [Read more…]

Why you should not engage an unlicensed building contractor

In Queensland, building work is governed by the Queensland Building and Construction Commission Act 1991 (Act).  Under Schedule 1 of the Queensland Building and Construction Commission Regulation 2018 (Regulation), subject to some qualifications (i.e. design work, plumbing, gas fitting etc), work is not building work (as that term is defined in Schedule 2 to the Act) if it is valued at less than $3,300.00.  Pursuant to section 42(1) of the Act, a person can only carry out or undertake to carry out building work if the person holds a contractor’s licence for the appropriate class under the QBCC Act and the Regulation.  Building work performed by an unlicensed person is unlawful building work and has significant implications for a person who engages someone who is unlicensed to perform building work. [Read more…]

Implications of performing unlicensed building work

Unlawful building work performed by an unlicensed person has significant implications for the person who performs the unlicensed building work.   In Queensland, building work is governed by the Queensland Building and Construction Commission Act 1991 (Act).  Under Schedule 1 of the Queensland Building and Construction Commission Regulation 2018 (Regulation), subject to some qualifications (i.e. design work, plumbing, gas fitting etc), work is not building work (as that term is defined in Schedule 2 to the Act) if it is valued at less than $3,300.00.  Pursuant to section 42(1) of the Act, a person can only carry out or undertake to carry out building work if the person holds a contractor’s licence for the appropriate class under the QBCC Act and the Regulation. [Read more…]

Confusing marks – Sensis v Senses

In the recent case of Sensis Pty Ltd v Senses Direct Mail and Fulfillment Pty Ltd [2019] FCA 719 (24 May 2019) (Sensis v Senses) the moral of the story might be that if your brand name is so similar to another company that your customers could confuse or are confusing their name with yours… you might be in trouble.  This was the case in Sensis v Senses where Senses Direct Mail and Fulfillment Pty Ltd (Respondent) was held to have infringed the registered marks of Sensis Pty Ltd (Applicant) owner of well-known directory brands, including the Yellow Pages and White Pages. [Read more…]

Unfair preferences and the set-off defence

Under section 588FA of the Corporations Act 2001 (Cth) (Act) an unfair preference is defined as a transaction, such as payment of an outstanding debt, between a company and an unsecured creditor which results in that unsecured creditor receiving more than it would have received if it had to prove in the winding up of the debtor company.  It is unfair because the payment results in the net value of the assets of the debtor company being reduced, to the detriment of the body of unsecured creditors as a whole.  One of the rarer defences is the Set-Off to an unfair preference claim. [Read more…]

Defects and completion of construction contract stages

Standard residential construction contracts entitle a builder upon completion of a nominated stage defined in the contract to submit a payment claim.  If the stage payment claim is not paid, the builder has various options available, such as suspension of the building work, referral to mediation and ultimately, termination of the contract.  Before terminating a contract in reliance upon non-payment of a stage payment claim, it is imperative the stage relied upon has in fact been completed.  Termination of a contract midway through its performance has, for both parties, significant legal and financial implications which can quickly overshadow any initial dispute between them. [Read more…]

Contractual terms can be misleading – Jetstar under fire

Businesses often make broad sweeping statements, in their agreements and particularly in the terms and conditions of sale presented on their websites purporting to exclude consumer’s rights to warranties, guarantees or remedies.  In reality, such declarations can amount to a breach of the Australian Consumer Law (ACL) which recently occurred in relation to Jetstar. [Read more…]

Technology startups – top 5 legal considerations

The allure of generating income from a subscription base, operating a marketplace or your own e-commerce venture is strong and for good reason.   The success stories of tech startups and the unicorns in this space are many, but so are the failures.  If this is the path you are considering taking, these are our top 5 legal considerations. [Read more…]

Need a reseller agreement?

A reseller agreement (Reseller Agreement) is a contract that entitles one party (Reseller) to sell, market, distribute, or lease a product or service of another (Supplier).  Resellers Agreements are also known as distribution, supply or distributor agreements. Often the Supplier is also the manufacturer of the goods but they may be the importer, a developer of the service or a licensee of software or training programs. [Read more…]

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