Internet Law

Standard form telecommunications services agreements

Too often carriage service providers neglect to ensure that their standard form of service agreement (SFA’s) comply with the telecommunications law regulatory regime.   This can lead to consumer complaints to the Telecommunications Industry Ombudsman (TIO) and orders for compensation to be paid to the Consumer and fines.   Below we set out some of the key requirements that need to be complied with for carriage service providers comply with the telecommunications law. [Read more…]

Can meta tags constitute trade mark infringement?

Search engines use a variety of algorithms and methods to determine the relevancy and ranking of websites on the search results page, based on keywords.  Importantly, search engines can refer to a websites ‘meta tags’ to find relevant words to match with search results.  As a result, meta tags have become increasingly important for businesses and their online presence.  However, the case of Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd [2015] FCA 554 (Accor Case) highlights the difficulties of meta tags with respect to trade mark infringement. [Read more…]

Aussie Court orders Google to unmask reviewer

Online reviews are crucial to most business’ online presence.  While some reviewers openly share their identity along with their comments, many choose to remain anonymous.  In the case of false, misleading or defamatory online reviews, this can create a host of issues for businesses seeking to remove the review or commence legal proceedings against a reviewer.  This was evident in the recent case of Kabbabe v Google LLC [2020] FCA 126. [Read more…]

Proposed standards for online safety

In December 2019, the Australian Government released a discussion paper on a proposed “Online Safety Act” (Proposal) for consultation.  The Proposal is intended to combine and coordinate the existing framework into a single piece of legislation, and provide an update in accordance with the changes in the digital landscape.  The Proposal will encourage businesses trading online to take more responsibility for material on their platforms. [Read more…]

Phasing out the innovation patent

Article updated 14/02/2020

The Innovation Patent system was originally introduced in 2001 to provide a cheaper, more efficient way for small to medium-sized businesses to protect their intellectual property through the ‘innovative step’ test.  Innovation Patents protect those inventions that do not meet the inventive step threshold required for standard patents.  However, the recent Intellectual Property Laws Amendment (Productivity Commission Response Part 2 and Other Measures) Bill 2019 (the Bill) will see the eventual phasing out of the Innovation Patent system in Australia. [Read more…]

Software litigation – how much evidence is enough?

Litigation involving software commonly involves allegations of copyright infringement and breaches of contractual obligations of confidence.  However, without an “anton pillar” style order, it can be challenging to substantiate the extent of any alleged breach due to the technological nuances involved with properly analysing available evidence.   This make it difficult for the plaintiff to decide whether or not to initiate legal proceedings against an infringing party.  In circumstances where a prospective applicant does not have complete access to the source code, it may be desirable to make an application for discovery prior to the start of proceedings pursuant to Rule 7.23 of the Federal Court Rules 2011 (Cth) (Rules). [Read more…]

Has my software been copied? – the legal test

There is an urban myth that something can be copied and changed by 20% or so and then there is no copyright infringement.   Rightly or wrongly this is simply untrue.  In the case of IPC Global Pty Ltd v Pavetest Pty Ltd (No 3) [2017] FCA 82 (IPC Global), a former employee of the applicant copied source code and passed it to a developer.  It was subsequently alleged that in doing so, the respondent had breached a contractual obligation of confidence and had also breached the applicant’s copyright. [Read more…]

A bet or a game? The Lottoland case

On 16 August 2019, the Supreme Court of New South Wales (Supreme Court) ruled in favour of the plaintiff, Lottoland Australia Pty Ltd ACN 602 590 429 (Lottoland), in its action against the Australian Communications and Media Authority (ACMA) for their investigative findings against them stating their online products were in contravention of the relevant legislation: Lottoland Australia Pty Ltd v Australian Communications and Media Authority [2019] NSWSC 1041. [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…]

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…]

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