Ouch! Federal Court of Australia imposes $4.5 million-dollar penalty for misleading marketing of pain-relief products

The Federal Court has handed down a significant $4.5 million penalty over misleading claims made with respect to the over-the-counter muscular pain relief products, ‘Voltaren Osteo Gel’ and ‘Voltaren Emulgel’.  The decision in Australian Competition and Consumer Commission v GlaxoSmithKline Consumer Healthcare Australia Pty Ltd (No 2) [2020] FCA 724 makes it clear that the read more...

Love is in the Ear – Federal Court of Australia finds copyright infringed by the sound of lyrics sung

On 24 April 2020, Justice Perram of the Federal Court of Australia gave judgment in relation to a copyright dispute concerning the iconic Australian pop-hit classic, Love is in the Air, finding that a substantial part of the song had been copied by a US pop-duo, Glass Candy, and by France’s national airline, Air France, read more...
Subjects: Copyright

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Bega succeeds in Full Court Appeal despite “Krafty” peanut butter packaging

On 15 April 2020, the Full Federal Court dismissed an appeal against O’Callaghan J’s decision in Kraft Foods Group Brands LLC v Bega Cheese Limited (No 8) [2019] FCA 593. Importantly, this decision confirms that unregistered trade marks cannot be assigned without a sale of the underlying business which holds the related goodwill. The appeal read more...
Subjects: Trade marks

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Mr Worldwide’s Great American ‘Scream’ – Protection granted for Pitbull’s famous yell

American rapper, singer and songwriter Pitbull (Armando Christian Pérez) has successfully trade marked his tell-tale yell “EEEEEEEYOOOOOO!” that features heavily in most of his songs. It is one of the many famous Pitbull-isms, along with rhyming ‘Kodak’ with ‘Kodak’, or calling himself Mr. Worldwide and Mr. 305. The U.S. Patent and Trademark Office (USPTO) in read more...
Subjects: Media | Trade marks

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You can’t have your burger and eat it too: In-N-Out Burgers, Inc v Hashtag Burgers Pty Ltd

Whilst In-N-Out don’t operate any permanent restaurants in Australia – only pop-ups, as we lamented in our previous post – the Federal Court ruled last week that its registered trade marks had been infringed by local chain “Down-N-Out” (DNO) and that In-N-Out had a sufficient reputation in Australia such that DNO was found to be read more...
Subjects: Trade marks

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A failure to function? It’s not unusual. Beer and bikini cases highlight the limitations of sub-brands in Australian trade mark cases

It seems apt in the current climatic context that a number of recent Australian trade mark decisions have centred on swimwear and craft beer. Is my brand even … a brand? One of the more difficult and nuanced issues in trade mark law is whether a particular sign is being used in a trade mark read more...
Subjects: Trade marks

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Popping prosecco’s bubble: geographical indications and the prosecco war

As we leave the holiday season behind us, let’s “wine” down and discuss the latest saga in Australia’s wine industry. In 2019 Australia’s free trade negotiations reached a fizzing point when the EU asked Australia to honour Prosecco as a geographic indication (“GI”) of Northern Italy. Honouring Prosecco as a GI would prohibit local wine read more...