Limping Trade Marks and Distinctiveness in Australia
Oyster Bay’s Wine Bottle Trade Mark Application Rejected
In 2012, New Zealand winery Oyster Bay filed a trade mark application as follows:
MIKSEŁKO VS. MILKSEŁKO ŁACIATE
Ruling of the Supreme Administrative Court of 10 April 2014 (II GSK 255/13)
This case involved a clash between marks serving to identify fats comprising a mixture of butter and vegetable fats. In 1996, the word mark MIKSEŁKO was registered. This is a fantasy composition suggesting that the goods it identifies are a mixture of fats with the addition of butter. In 2008, a competitor of the owner of the first sign successfully registered the mark MILKSEŁKO ŁACIATE. That mark is a word-graphic mark consisting of two elements. The second is very well known as an independent mark used to identify milk and a line of goods produced from cow’s milk. The first element, by using the English word ‘milk’, emphasizes that the products are derived from milk, while the first element as a whole suggests that butter is contained in products bearing the mark. Read More
Suspected Fake Shoes Swooped in Hong Kong
Acting on a complaint that fake sports shoes were sold in Mong Kok, a popular shopping district for trendy teens and tourists, Hong Kong Customs went into action and raided retail shops and warehouses.
Customs Officers seized suspected fakes, including 1,905 pairs of sports shoes, to a tune of HKD1.67 million. The suspected head of the fake goods syndicate along with six other people were arrested.
The arrests included a 16 year old and Customs has appealed to young people to be on guard against dodgy dealings when working in summer jobs. Read More
Watching Paid TV for Free?
The drama craze and football fever had increased the popularity of set-top boxes, sold at the cost of a few hundred Hong Kong dollars and easy to use. Users can simply connect the box to a TV to enjoy television dramas, sports and even real-time broadcasts from different countries.
Problems arise when set-top boxes are jail broken by sellers, permitting access to unauthorized content. Users and sellers should beware of the potential copyright issues arising from such use. Read More
Purple is the New Orange: FDA Releases a Purple Book for Biosimilars
On September 9, 2014, the U.S. Food and Drug Administration (“FDA”) published the first edition of the Purple Book: Lists of Licensed Biological Products with Reference Product Exclusivity and Biosimilarity or Interchangeability Evaluations (“Purple Book”). The Purple Book is the biological equivalent of the pharmaceutical Orange Book, and seeks to aid regulatory agents, generic manufacturers, and physicians by arming them with information related to biological products such as biosimilars including, for example, providing information regarding the interchangeability of products. Read More
Australian Patent Examination Reports Issuing Faster Than Expected in Some Technology Areas
Prior to commencement of the Intellectual Property Laws Amendment (Raising the Bar) Act 2012, which came into effect in April 2013, the Australian Patent Office was inundated with requests for examination from applicants wishing to have their applications examined under the current law.
This flood of examination requests led the Patent Office to last year advise that first examination reports would likely issue, on average, about 19 months after examination is requested. We have recently been advised by the Patent Office that the backlog of applications awaiting examination is starting to clear and that examination reports are now issuing, on average, about 16 months after examination is requested. Read More
Not a Free For All on Compilations! Big Additional Damages Payout
Dynamic Supplies Pty Limited v Tonnex International Pty Limited (No.3) [2014] FCA 909
In the liability hearing of this matter (Dynamic Supplies Pty Limited v Tonnex International Pty Limited (2001) 91 IPR 488) Justice Yates found that:
- the respondent, Tonnex, had infringed the copyright owned by the applicant, Dynamic, in a computer compatibility chart for printer and computer consumables called the ‘March 2008 CSV file’ (Copyright Work) in breach of the Copyright Act 1968 by reproducing a substantial part of the Copyright Work in its document called ‘Tonnex 2008’
- Tonnex had contravened ss 52, 53(c) and 53(eb) of the Trade Practices Act 1974 (Cth).
No Interlocutory Injunction? No Sweat
Unilever Australia Ltd v Revlon Australia Pty Ltd (no.2) [2014] FCA 875
This case is the latest skirmish between two personal product giants, Unilever and Revlon, before war breaks out on 15 September 2014 when the trial begins.
The case concerns ‘clinical’ anti-perspirant deodorant products; Revlon’s product sold under the brand name Mitchum Clinical and Unilever’s products sold under the brand names ‘Rexona’ and ‘Dove’.
The first interlocutory injunction hearing was brought by Unilever against Revlon in May 2014 concerned misleading representations alleged to have been made by Revlon in advertising. On balance, the Court refused to grant the injunction as it would have a serious adverse impact on the worldwide marketing campaign for Revlon and the trial could be held in July 2014. The July trial was eventually adjourned to 15 September 2014. Read More
Australian Courts Confirm Status Quo for Patenting Gene Sequences
Today, a five-judge bench of the Full Court of the Federal Court of Australia unanimously decided that Myriad Genetics Inc’s (Myriad) patent covering the isolated BRCA1 gene (Patent) is valid.
In Yvonne D’Arcy v Myriad Genetics Inc & Anor (5 September 2014) the Full Federal Court rejected the reasoning of the U.S. Supreme Court, when it found in 2013 that certain claims of a closely related U.S. Patent of Myriad were invalid as the claim to isolated nucleic acid was a claim to a “product of nature” and not patentable subject matter.
For the pro-patent lobby and the biotech industry, this is good news for innovation in life sciences in Australia.
PTO Seeks to Improve Patent Quality
At the same time that it announced an almost 50% reduction in its backlog of request for continued examinations over the past year, the U.S. Patent and Trademark Office (USPTO) announced a new initiative to improve patent quality. During the quarterly Patent Public Advisory Committee (PPAC) meeting in August, USPTO Commissioner for Patents, Peggy Focarino, said the new focus on quality was a result of the PTO approaching optimal steady state application pendency and the AIA creating a sustainable fee reserve to fund such initiatives. Read More