Intellectual property litigation

Interlocutory injunctions and undertakings as to damages

An interlocutory injunction is an order made by the Court prior to trial either preventing or requiring some undertaking to be taken by one or more parties.  The Courts acknowledge that the imposition of such an interlocutory injunction on a party is not necessarily final and is subject to change.  As such, an undertaking as to damages is usually required by the party seeking an interlocutory injunction (Applicant).  This article discusses the established principles the Court will use to discern whether an Applicant has an adequate case for granting an interlocutory injunction. [Read more…]

Unjustified threats of trademark infringement

Where a party threatens another with legal proceedings for trademark infringement the recipient of the threats may have grounds to commence proceedings for making unjust threats.  In other words where the threats are unjustified the recipient may apply to the Court for relief from the unjust threats. [Read more…]

Franchising Code changes in force

In November 2020, the Department of Industry, Science, Energy and Resources (Government) released its Exposure Draft proposing amendments to the Franchising Code of Conduct (Code).  The proposed amendments sought to implement the commitments the Government made in August 2020 in response to the Parliamentary Joint Committee’s March 2019 Fairness in Franchising Report which identified a range of regulatory matters to be addressed in the franchising sector.  Since the Exposure Draft’s release, multiple changes have come into force under the Code.  This article outlines these changes. [Read more…]

Preliminary discovery in the Federal Court

Preliminary discovery (Discovery) is available to potential applicants (Applicants) in the Federal Court for the purposes of determining whether there is a good cause of action against a prospective respondent (Respondent).  It is not as a mechanism for full discovery.  Discovery is done before the filing of any claim and occurs at the very start of litigious proceedings. [Read more…]

What is the proposed ‘patent box’ tax incentive?

The Federal Government has announced in its 2021-2022 budget the ‘patent box tax regime’ (Regime).  The Regime is in effect a $206 million boost to Australian biotech and medtech innovators (Research Areas) via the implementation of a concessional corporate tax rate. [Read more…]

Accessory liability for copyright infringement

An accessory is a person or corporation involved in another’s wrong or unlawful act.  The tort of accessory liability is an important area of law allowing claims to be brought against “accessories” who participate in wrongdoings.  This is desirable in circumstances where, for example, the primary wrongdoer is insolvent, lacks capacity, or for some other reason cannot be pursued through regular legal channels.  In such circumstances, it may be just or equitable for a claimant to pursue a third party, the accessory, if they were sufficiently involved in any wrongdoing.  Even in circumstances where the primary wrongdoer can be pursued, accessory liability provides a mechanism for enhancing the protection afforded to holders of legal rights against interference by accessories. [Read more…]

Palmer breaches copyright – liable for $1.5m AUD in damages

On 30 April 2021 Katzmann J delivered the Federal Court’s judgment in the matter of Universal Music Publishing Pty Ltd v Palmer (No 2) [2021] FCA 434 (UMB).  The case of UMB concerns the infringement of musical and literary works (Works) of Daniel “Dee” Snider (Dee) by Clive Palmer’s United Australia Party’s (UAP/Respondent) multi-media advertising campaign.  UMB considered a complex and detailed fact matrix.   Simply put, the Respondent made use of a short jingle with the lyrics ‘Aussies Not Gonna Cop It’ to the tune of Dee’s ‘We’re Not Gonna Take It’, alongside other similarly reproduced advertisements (Impugned Works), to promote the Respondent’s political objectives. [Read more…]

What is the springboard doctrine?

The ‘springboard’ doctrine refers to the benefit that is derived because of misuse of confidential information by a defendant that enables them to ‘springboard’ a new product or service to market more rapidly than if they had used their own mind.  A breach can be a contractual or equitable in nature and can also involve other causes of action such as breaches of director’s duties. [Read more…]

What is a registered design?

The registration of designs in Australia are a form of intellectual property protection associated with the visual appearance of an items with commercial or industrial significance.  Rights in designs are obtained by registration under the Designs Act 2003 (Cth) (Act).  Once registered the owner has exclusive rights to use the design, licence its use to others or sell it. [Read more…]

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