You’ve developed your trade mark, thought about the design, considered how your trade mark can promote your business and finally received confirmation that your trade mark is registered. It’s a great feeling!
Your trade mark is valuable to your business. Customers recognise and connect your business with your trade mark. For this reason, protecting your trademark after it is registered is vital in preventing its value from diminishing. ...
In 2014, American rapper Eminem filed proceedings against the National Party of New Zealand for using a variation of his song, ‘Lose Yourself’, without consent. The song was used in the National Party’s successful election campaign of the same year. ...
If you’ve ever been on YouTube, you may have noticed something funny crammed between the comments section and the video. It usually looks something like this:
"Copyright Disclaimer Under Section 107 of the Copyright Act 1976, allowance is made for "fair use" for purposes such as criticism, comment, news reporting, teaching, scholarship, and research. Fair use is a use permitted by copyright statute that might otherwise be infringing. Non-profit, educational or personal use tips the balance in favor of fair use.”
This disclaimer pops up on video games, music videos, and even adult websites, like the world’s nerdiest virus. All over the globe, people are taking copyrighted stuff and reissuing it under the doctrine of “fair use”. ...
A lot of time, effort and money goes into branding a business - coming up with the name, designing a logo, generating marketing material, etc.
Most people will do the usual business, company and domain name searches, and if the name is available, they register. This is certainly a start, but this isn’t where these enquiries should end. ...
Image via today.com
Consumer Affairs Victoria v Gibson
The Federal Court has handed down its decision on penalties against Belle Gibson.
Ms Gibson rose to fame (and infamy) surrounding promotions of her book and mobile app titled The Whole Pantry, wherein she claimed to have beaten cancer through diet and alternative therapies after rejecting conventional cancer treatment. ...
Show Pony Group Pty Ltd (“ShowPo”) has settled a dispute with competitor Black Swallow Boutique Pty Ltd (“Black Swallow”) and two individuals, Mr Alexander Baro (chief executive of Black Swallow) and Ms Melissa Aroutunian (a former graphic designer for ShowPo), over the alleged theft of ShowPo’s contact database.
The case highlights the risks of unauthorised use and disclosure of confidential information. It also reveals that sometimes the greatest threat comes from within.
Details of the ShowPo case
ShowPo, a hugely popular online women’s fast fashion retailer, commenced proceedings in the Federal Court of Australia in mid-November 2016. It was alleged that the former employee, Ms Aroutunian, downloaded a copy of ShowPo’s Client Contact List before leaving ShowPo and provided a copy of that list to Black Swallow. According to court filings, the database contained contact information for all of ShowPo’s customers, competition entrants, suppliers and other contacts. It was estimated that the database contained around 306,000 entries.
ShowPo was successful in obtaining an interim injunction (a temporary court order made subject to the subsequent trial of the proceedings) to prevent the three respondents from using or disclosing the Client Contact List.
The proceedings then headed to Mediation, following which the case was finalised by agreement between the parties.
According to the final orders, dated 24 March and 10 April, each of the respondents is permanently restrained from using or disclosing the Client Contact List, and Black Swallow has been ordered to pay $60,000 in compensation to ShowPo over instalments.
The customers of a business are its lifeblood, and their information is increasingly being obtained and stored online. So, what measures can be taken to protect this essential and sensitive information from unauthorised breach? And what can you do if a breach occurs?
Basic Data Security
It goes without saying that ...
In February 2017, the much anticipated Mundine/Green fight took place. This long-awaited match was expected to be an intense fight between two rivals, however, Australias received more than just one fight when a dispute over copyright emerged between Foxtel, the official broadcaster, and two Facebook users.
It is alleged, that approximately 300,000 people viewed the fight via Facebook’s live-streaming service when the two men streamed the fight through their Facebook accounts. Foxtel, being the official broadcaster, alleges that the streaming of the fight violates their copyright as they held the exclusive rights to air the fight. Foxtel threatened legal action against the Facebook users.
The unofficial follow-up fight, however, did not last long as the two Facebook users issued public apologies the following week.
So why did the streaming of the fight cause such a disagreement?
Copyright law in Australia
Copyright law has a long history in Australia. Within the area of intellectual property law, copyright is one of the few rights bestowed automatically. This means that unlike trade marks or patents, the person or company seeking the legal protection afforded by copyright law does not need to apply or be approved, it simply exists over the published work.
As the rightful owner or creator of the work, you get to decide how and whom may re-publish your work. In the case of Foxtel, the organiser chose Foxtel to exclusively broadcast the fight. This means that Foxtel was the only entity that had permission to air the fight. Foxtel argues that streaming the fight is the same as broadcasting and therefore when the two men streamed the fight, they were violating Foxtel’s exclusive rights.
Live-streaming Services
Whether you view Foxtel’s actions as extreme or not, the potential legal issues relating to live-streaming will make headlines again as the service becomes more popular.
While this situation ...
The Full Federal Court confirms that metadata is not all linked in its decision in the case of the Privacy Commissioner v Telstra Corporation Limited [2017] FCAFC4.
The History
In June 2013, a Telstra customer, Mr Grubb, made a request to Telstra for ‘all the metadata information Telstra has stored about my mobile phone service’.
In accordance with the Privacy Act 1988 (Cth), a person has the right to request access to personal information held by an organisation that is bound by the Act.
Over the course of the following year, Telstra provided Mr Grubb with various information about his service including dates and times of communications, his locations and duration of calls.
Telstra, did not, however, provide the metadata concerning the journey of his calls or IP addresses related to his internet usage as Telstra did not view this type of information as personal information within the meaning of the Act.
Mr Grubb disagreed and filed a complaint to the Privacy Commissioner.
Telstra argued that the information relating to the path a call takes or the IP addresses a network uses to access the internet is not personal information as that metadata does not identify a person. Once a call leaves the original tower, the metadata associated with that journey is not attributable to the individual person.
The Full Court agreed with Telstra deciding that the metadata Mr Grubb requested did not meet the required threshold to be defined as personal information within the scope of the Privacy Act but is rather information about how Telstra provides the service.
What is the impact of this decision?
It is unclear how wide of an impact this decision will have within the general area of privacy law because the statutory definition of personal information has changed since Mr Grubb’s complaint.
However, the case does serve as a reminder of the importance of businesses reviewing ...
Australian Consumer Law: Valve Gets Steamed By ACCC In 'No Refunds' Case
The Federal Court of Australia has handed an A$3million fine to Valve Corporation for breaches of the Australian Consumer Law (ACL).
Valve operates Steam, which is a popular platform for online distribution of computer games. The case involved the issue of consumer rights when it comes to obtaining refunds for 'faulty' software purchased on the platform.
Breaches of the Australian Consumer Law
Customers are required to accept a Steam Subscriber Agreement to use Steam. Valve's agreement contained provisions attempting to exclude:any warranty as to the merchantability of the software games it supplied; and
the right to any refunds or compensation even if the software was faulty.
The ACCC commenced proceedings against Valve, alleging those provisions and other representations by Valve regarding consumer rights breached the ACL.
However, Valve argued that the ACL did not apply because:it was a foreign entity and did not conduct business in Australia;the law of Washington State applied to the Steam Subscriber Agreement; and
the mere issue of software licences did not constitute a ‘supply of goods’.
The Court dismissed Valve's arguments, finding that:supplying a software download was a ‘supply of goods’ under the ACL;the ACL continued to apply despite the 'choice of law' provision in the Steam Subscriber Agreement;
the relevant customer relationships and transactions occurred in Australia;
Valve did in fact conduct business in Australia, as it had cached copies of the software on Australian servers and engaged Australian agents in its supply chain;
the statutory consumer guarantees under the ACL (including the guarantees that goods must be 'fit for purpose' and 'of acceptable quality' and the entitlement to refunds and replacements where goods fail those guarantees) cannot be excluded or avoided by contract; and
Valve breached the ACL by purporting to refuse refunds and exclude ...
Is The Pen Mightier Than The Pixel? Electronic Signatures vs Traditional Paper
Ever wondered why checkboxes are so popular online? From ordering pizza to signing up to Spotify, we’re constantly asked to “agree to the terms and conditions”. Heck, one day, you’ll probably check a box to get married! We may not always think of these little boxes as electronic signatures, but they in fact operate in the same way as traditional paper contracts. Do you ever consider the risks and benefits when you sign documents online?
What is an electronic signature?
An electronic signature is very similar to a pen-and-ink signature. Essentially, it’s a mark or indication that identifies you, the person signing the document. Like a pen-and-ink signature, it’s used to show that you agree to a set of terms.
Electronic signatures come in all shapes and sizes, from an image of your real world signature, to email signatures, to clicking “I accept” to sign documents online. Courts in Australia consider all of these to be valid electronic signatures.
You can use an electronic signature in most situations where a pen-and-ink signature could be used. But there are some circumstances where you can’t use an electronic signature – for example: on your will, on a statutory declaration or affidavit and on other documents that have formal signature and witnessing requirements. Also, both parties to the contract must agree to accept the use of electronic signatures.
What are the benefits of using electronic signatures?
Electronic signatures are extremely useful for cutting down on waste. They remove the need for pens, paper and ink. They also protect against wrist injury for anyone required to sign reams of paperwork in one sitting.
Many businesses and government agencies are adopting and accepting online or electronic signatures as part of their contracting process. Rouse Lawyers is proud to use electronically-signed cost agreements, for example.
Electronic signatures are also ...
