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Australian IP Lawyer Hints on Twitter

Australian intellectual property ("IP") law is a very large canvas. So is the concept of "lawyer". Without explanation, telling someone I'm an IP lawyer sends a vague message in my case. No, I don't go to court all the time. And no I don't get paid just for legal advice.

Certainly in most cases I have some focus on specific technical areas of IP law (eg copyright, confidential information or trade marks) or areas in the vast field known as "business law".

Yet what's often needed is also general or in-depth non-legal knowledge.

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Parallel importation and the doctrine of exhaustion

Parallel importation is increasingly common in Australia's liquor, fashion and branded goods markets.

This article overviews legal considerations and sets out six pointers for management of legal risks faced by parallel importers.

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Electronic signatures are legal

A court decision this month gives further guidance on when electronic signatures might be legally accepted under law in Australia.

The 13 August 2010 court decision is Getup Ltd v Electoral Commissioner [2010] FCA 869.

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Why health records may have no copyright

The Federal Court recently held that there was no copyright in certain health records, such as prescriptions and patient health summaries. The basis was that they lacked sufficient “independent intellectual effort”. Where referral letters showed “some” independent intellectual effort - copyright was found to subsist.

The court found that it was only in a particular sample of consultation notes that it was “possible to discern a continuous narrative” showing independent intellectual effort enough to identify an author of the notes as a literary work.

In most of the consultation notes, record entries were found to be dictated by their nature and function. This affected records regarding such things as a patient's medical condition, medications, and blood pressure readings.

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Lessons from litigation in copyright versus access

Having lost in the first round, on 11 August 2010 Viacom filed papers to appeal its $US1 billion claim against YouTube arguing infringement of its copyrights by YouTube and its owner, Google.

This is a short case note on that first instance decision (a loss by Viacom). We'll also put into its context the ongoing iiNet case in Australia, as well as background "content sharing" cases such as the Napster and Grokster decisions in the last decade.

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Business method patents still OK in U.S.

This is a short case note on the 2010 U.S. Supreme Court decision in Bilksi et al v Kappos [Wikipedia link].

The applicant was unsuccessful in seeking to patent a business method. It was a method to calculate the risk of price changes in the energy sector caused by seasonal changes in the weather, to be used in the creation of fixed bill energy contracts for consumers.

This particular method or process patent application failed to be eligible as a patent because it was found to be a mere concept, an abstract idea, that basically boiled down to a mathematical formula, to be applied to the energy industry.

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5 relationships between brands and e-commerce

The business model of fashion brands for decades has been to control the way they are represented and where their goods are sold. This has been central to the way they have traditionally made money. Sure, they have produced wonderful products too.

The controls fashion brands have evolved and used create an air of exclusivity about their products.

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Build trust for success online

We all value trust. It makes us buy from the corner store and buy online.

You know when trust is lost. Think of Howard Beale played by Peter Finch in the 1976 film Network. His famous line was to ask people to turn TV off, saying "I'm as mad as Hell, and I'm not going to take this anymore! " [click to watch it on YouTube].

For many businesses it's time for a change to benefit from growing confidence in the online world. Does your business have to do better online? Does your website need a makeover? Begin by asking - how do you win trust from your people, your customers and your suppliers.

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Trade mark registration - use it or lose it

Registration of a trade mark can be cancelled if the trade mark is not used. Use must be within three years of registration under section 92 of the Trade Marks Act (Cth) 1955. But what level of use is required? Many court decisions have turned on this question.

We'll examine here the recent  High Court of Australia decision, E. & J. Gallo Winery v Lion Nathan Australia Pty Limited [2010] HCA 15 (19 May 2010).

Gallo Winery is a Californian company. It is one of the largest wine producing companies in the world. Gallo became the owner of Australian trade mark number 787765 for BAREFOOT in 2005. The mark was for "wines" in class 33 and was originally registered from 9 March 1999 by Michael Houlihan, trading as Barefoot Cellars.

In 2007 Gallo took legal action alleging infringement by Lion Nathan Australia Pty Ltd for use of BAREFOOT or BAREFOOT RADLER for beer.

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Copyright requirements for originality and authorship

There are five requirements for a person or company to claim ownership to copyright work. These can be stated in simple terms. Issues  arise in their application to specific fact situations.

Copyright was orginally applied to "literary works" which by their nature had an element of creativity.  Over time a very wide range of mundane work attracted copyright protection. Courts came to recognise the existence of copyright in phone directories, tickets, football league tables and other pedestrian materials.

Firstly in the United States, and now in Australia, the highest courts have heralded a shift back to original principles for literary works.

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How to protect fashion designs

To protect fashion designs it is not sufficient to rely just on copyright, trade marks and design registrations. Fashion houses instead mostly rely on brand prestige, rapid style changes and stock control.

A recent court decision provides guidance on more ways to protect apparel designs or defend against claims of infringement.

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The cooks, the critics, the restaurant proprietors and their court cases

On 14 June 2007 the High Court of Australia ruled a restaurant review can be liable for defamation.

However in the final court decision in the matter, on 19 December 2009, Justice Ian Harrison in the Supreme Court of NSW held in favour of the publisher and the food critic, Matthew Evans.

The Sydney Morning Herald reported that the three defamatory meanings in the critic's article were: "Firstly, that it sold some unpalatable food, secondly, that it provided some bad service, and thirdly, that the trio were incompetent restaurant owners because they employed a chef who made poor quality food."

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A recipe to make a high net worth celebrity chef

For kicking off fame for chefs, Masterchef has a winning formulae. For building revenues, the traditional path is mapped in this article, first published in October 2006. Masterchef graduates confirm the path with their cookbooks, advertising appearances, and TV series.

Pepper and other spices were highly valued in pre-modern times. Fortunes were made by traders who transported them from distant lands to the privileged in Europe. Today spices are a commodity, they are readily available for a few dollars at the supermarket. What we highly value today are the traders of information, entertainment and fashion ideas about cooking. Prominent among these traders are celebrity chefs. What they can earn is astonishing.

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Technology diffusion and the Hollywood business model

The Hollywood business model combines talent, fame, distribution networks and familiar messages. Another simplification is that Hollywood is a fame factory and fame is an easily understood business model.

Fame begets fame. Sometimes it arrives very quickly. In comparison it is usually slower going with technology diffusion (see Footnote 1).

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Why register a trade mark?

In the legal arena a trade mark is in essence a sign for the source or origin of a product (eg branded magazine) or service (eg branded publishing services). In the eyes of the law - the mark sources the trader.

All businesses have trade marks. Their legal status and ease of protection varies for reasons briefly noted here.

In common usage a "trade mark" may be a brand, logo, word or other sign. A trade mark registered in Australia gives its owner the advantage of a monopoly statutory right (ie law made by parliament) to use it in Australia. This legal monopoly right comes into force on registration without evidence of use.

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