The winner doesn’t always take it all – apportioning costs in patent cases

Everyone is aware of the ordinary rule: costs follow the event.  A successful litigant will recover costs in the absence of special circumstances.  But what constitutes special circumstances in patent cases?  The recent Full Court decision in PAC Mining Pty Ltd v Esco Corporation (No 2) [2009] FCAFC 52 highlights where the Court may depart from the ordinary rule and apportion costs on an issues basis.

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Piracy? Don’t say we didn’t warn you. Twice!

Irish internet provider Eircom has agreed to implement a “three strikes” notice and disconnect regime in settling a case brought against it in the High Court in Ireland by the Irish Recorded Music Association (IRMA). 

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Who’s spam is it anyway? “Friend email friend” messages

ACMA (Australian Communications and Media Authority) recently fined Optus $110,000 for alleged breaches of the Spam Act 2003 (Cth), in sending electronic messages without accurate sender information.  In light of the significant penalties imposed by ACMA, we think it’s timely to think about “friend emails friend” communications, which may also risk contravening the Act. 

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UK launches informal consultation on the future of copyright

On 16 December 2008 the UK Department for Innovation, Universities and Skills launched an informal consultation on the future direction of copyright. The aim of the consultation is to build on the Gower’s Report released in 2006 and ensure that the copyright system properly supports creative industries in the UK in the light of digital developments over the last decade.

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Coles supermarket ticks off the Heart Foundation

 

According to the Sydney Morning Herald (http://www.smh.com.au/news/national/exposed-home-brand-deception/2009/01/16/1231608986605.html), Coles is set to overhaul its home brands partly due to concerns that the Coles Tick is too similar to the Australian Heart Foundation Tick.

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Clothing cases reveal the limits to design protection

Three recent cases instituted by Review (an Australian clothing designer and retailer) against alleged infringers of its registered dress designs have shown how difficult it can be to deter would-be infringers.  Although in each of the three cases (Review Australia Pty Ltd v Innovative Lifestyle Investments [2008] FCA 74; Review 2 Pty Ltd v Redbury Enterprise Pty Ltd [2008] FCA 1588; and Read More

“Share the Summer” – Coke’s challenge to traditional wisdom

Have you seen Coca-Cola’s “Share the Summer” campaign?  The billboard advertisements omit any reference to the name “Coke” or “Coca-Cola”.  Instead, consumers are invited to recognise the brand from the red background and the slogan “Share the Summer” featured in curly white script (also see www.sharethesummer.com.au).  Clearly Coke thinks this form of advertising works.  It did something similar in 2007 with its “Enjoy Summer” advertising.  In this respect, Coke is challenging the traditional wisdom that, in all advertising, ‘the name

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“Monster” – New direction on advertising evidence from the Federal Court?

Over recent years, some members of the Federal Court have been sceptical about advertising evidence.  In Cadbury v Darrell Lea,  Heerey J made it clear that expert marketing evidence could prove an expensive waste of time.  In his view, judges were well placed to determine themselves the brand impact of different types of packaging and marketing.  Heerey J was not alone in this view, although the Full Court did overturn his decision to exclude expert evidence from the case.  Now, the “Monster” case shows that the debate continues, but is perhaps trending towards an accept

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Adequacy of reasons

The duty of a trial judge to give adequate reasons was at the heart of a recent appeal before the Full Federal Court brought by Carlisle Homes Pty Ltd.  Carlisle, who we are acting for, was sued by Barrett Property Group Pty Ltd (Porter Davis Homes) for allegedly infringing copyright in Barrett  plans such as “the Seattle”.  Barrett has sued several industry players for infringing copyright in the ‘al fresco quadrant’ component of this plan (an open plan area plus courtyard under a single roofline).  Carlisle lost at first instance and appealed the decision.

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