It is often argued that intellectual property rights create an imbalance of power that is open to abuse by rights holders. In an effort to counter this, section 202(1) of the Copyright Act 1968 (Cth) (Act) provides remedies for groundless threats of legal proceedings for copyright infringement. This article will discuss the elements that define a threat as “groundless” and the remedies available when such a threat is made. [Read more…]
In the innovation economy it is becoming more prevalent for individuals aged less than eighteen (18) years (Minors) to seek to build enterprises. From time to time we are asked to consider whether a client can contract with a Minor.
The law in Australia and Queensland states that a Minor is someone who has yet to reach the age of majority, (being eighteen (18) years). In Australia, at common law and in statute, the general rule is that a contract with a Minor is void except in limited circumstances.
In simple terms, a trade secret is any secret commercial information that provides one business with an advantage over another. For example, trade secrets have been used by Coco-Cola for decades to ensure that its formula remains secret.
Despite the lack of a settled, legal definition of a “trade secret”, their value is recognised at both law, and in equity. At law, restraints of trade can be legitimately used in order to prevent the disclosure of trade secrets, or to prevent the use of trade secrets by employees in any subsequent business or employment. Trade secrets are protected in equity by way of an action for breach of confidence even in the absence of contractual agreements restraining their use.
For a start-up or an established business, it is essential that the goodwill of your trading name (Name) and any image (Logo) that you use to distinguish your business from its competitors is afforded the greatest legal protection. The best way to do this is to apply to have the business Name and Logo registered as a trade mark. [Read more…]
Whilst it is important to diligently protect your brand, the recent decision in Stone & Wood Group Pty Ltd v Intellectual Property Development Corporation Pty Ltd  FCA 820 (Pacific Ale Case) serves as a timely reminder that, much like the brewing of a delicious craft beer, making allegations of trade mark infringement requires extensive preparation, research and good judgment. [Read more…]
Legally enforceable obligations to maintain confidence may arise in contract or in equity. Relief is available against a party who discloses confidential information without authorisation, and in some cases against third party recipients of such information. In order to enforce a breach of confidence in contract or in equity, the presence of a number of elements must be established. [Read more…]
A confidentiality agreement (Confidentiality Agreement) is a commercial contract also referred to as a non-disclosure agreement (NDA) where one (1) or more parties provide confidential information to the other, with the expectation that both parties will keep the information provided secret and use it only for an agreed purpose (Permitted Purpose). Confidentiality Agreements can contain mandatory or elective obligations to disclose, or one (1) way or mutual obligations of confidence, in addition to a range of other obligations relating to the disclosure and use of confidential information which the parties agree to comply with. [Read more…]
The term confidential information is often bandied about in commercial transactions, however it is often inaccurately described. Because of this, we are often asked to consider whether information that a party is considering disclosing as part of a commercial transaction is actually capable of being kept confidential. [Read more…]
The loss of confidential information and intellectual property following the resignation or dismissal of an employee can be a serious concern. The removal of any confidential information or intellectual property by a former employee may constitute a breach of contract, an infringement of copyright or a breach of an equitable obligation of confidence.
Before a course of action can be pursued, evidence is required before any legal remedy can be sought. Often the evidence required is in a form that can be easily disposed of or destroyed, for example files taken from a company computer. In these difficult circumstances you may be able to rely on an Anton Piller order to secure evidence. [Read more…]