Australian Technology and IP Business

AusPat: Australia's new patents search engine

IP Australia has launched AusPat, the new search system for Australian patents.

Its coverage goes back to 1904.

Australian search engines and directories

VS Consulting has compiled an extensive report on the local Australian online search and directories market. There are more than 18 players, from small and medium enterprises (SMEs) to large corporations trying to get some share of this market.

The main focus of this report is on Sensis and its competitors and how it can reinvent itself in a rapidly changing local market.

Intellectual property for businesses in Australia

Patent attorneys Eagar & Buck have published a White Paper (pdf) on intellectual property for businesses in Australia. It comes with a self-assessment questionnaire (pdf).

The White Paper includes:

• Numerous case studies illustrating the use and misuse of IP.
• Guidelines to implementation of an intellectual asset management program.
• How to identify hostile competitor IP positioning before it causes financial loss.
• IP checklist before launching a new product or brand.
• How to stop employees leaving with critical IP assets.

Domain name disputes 2007 update

WIPO reports that in 2007, a record 2,156 complaints alleging cybersquatting - or the abusive registration of trademarks on the Internet - were filed with the World Intellectual Property Organization’s (WIPO) Arbitration and Mediation Center (Center), representing an 18% increase over 2006 and a 48% increase over 2005.

WIPO parties have settled a quarter of all cases without a panel decision. Of the remainder, 85% of panel decisions have ordered transfer of the domain names in question to the complainant and 15% of the complaints were denied, leaving the names in the possession of the registration holder.

The top five sectors for complainant business activity were Biotechnology and Pharmaceuticals, Banking and Finance, Internet and IT, Retail, and Entertainment.

Domain Name Tasting

Domain name tasting exploits the fact that someone registering a domain can keep it for up to five days and then return it for free. Some operators are using that grace period to test domain names for marketability. Visitors find an empty site.

A proposal has been put to ICANN, which oversees the grace period, to limit the number of refunds any registrar can claim on behalf of customers.

It wants the operators of generic top level domains (gTLDs) such as .com or .org to be restricted in the refunds they can offer. It has proposed that they only be allowed to offer refunds to 10% of the newly registered domain names in any given month. If that number is under 50 they will be allowed to refund up to 50 fees.

Australian Startup Carnival

VS Consulting has hosted the first Australian Startup Carnival which assessed 28 Australian tech startups.

There is a detailed profile of each of the contestants including their sources of funding and business model.

3 businesses were named winners by an independent judging panel.

via Ross Dawson.

Website designer fails in action against former employee

In Dais Studio Pty Ltd v Bullet Creative Pty Ltd [2007] FCA 2054 Dais failed in its action against a former employee it accused of copying without authorisation 2 utility files from its website design program.

Dais sued for infringement of copyright, to restrain the unauthorised use of confidential information, for breach of contract and for breach of certain provisions of the Corporations Act 2001 (Cth).

Although the judge concluded that each of the 2 small files  was a computer program, and therefore a literary work capable of being protected by copyright, Dais failed to prove they were a substantial part of the source code as a whole in their program.

The Digital Communications Age

On Thursdsay 6 March in Brisbane, Cliff Rosenberg, Digital media entrepreneur and former Managing Director of Yahoo! Australia and NZ will be speaking about the digital communications age at an AICC lunch.

Cliff Rosenberg has a strategic consultancy background in South Africa. With leading management roles in iTouch and Vodafone early this decade, Cliff went on to become Managing Director of Yahoo! In Australia/NZ from 2003-2006. After leaving Yahoo!, Cliff was MD and Partner in digital strategy agency, Clear Light Digital – which was bought out by ASX listed Bluefreeway Group. Still Chairing Clear Light Digital, Cliff is an active Venture Capitalist in the ‘new media’ space. Cliff is also founder of the Australian Interactive Advertising Bureau and was Chairman of the Mobile Advertising Awards in 2006 and 2007.

Book online

Does copyright in a label prevent importation?

In The Polo/Lauren Company L.P. v Ziliani Holdings Pty Ltd [2008] FCA 49, the Australian copyright owner of the Palph Laren "polo player" symbol failed in its action under s 37 of the Copyright Act in the Federal Court to prevent clothing bearing its embroidered logo being imported from USA into Australia.

The symbol was lawfully embroidered overseas into the external surface of an article of clothing, but the  person entitled to the copyright here did not consent to its importation.

The defendants succesfully contended that the polo player logo embroidered on each article amounted to a non-infringing accessory within the meaning of the exception to infringement in section 44C of the Copyright Act, because it is a ‘label’ embroidered onto an article of clothing.

Use of name permitted: Mythbusters

In Knight v Beyond Properties Pty Ltd [2007] FCAFC 170 the Full Court of the Federal Court of Australia rejected an appeal by Mr Knight from the Court's dismissal of his claim that Beyond Properties breached the Trade Practices Act 1974 (Cth) and engaged in the tort of passing off by publishing its Mythbusters television programs and spin-off books. Knight earlier wrote (using a nom de plume) 3 books about a group of persons who investigate paranormal or supernatural phenomena, using the name of ‘Mythbusters’.

The central issue for determination in thes appeal was whether the use of the name ‘Mythbusters’ in the Mythbusters TV Show was likely to wrongly suggest to the mind of a reasonable television viewer that the show was associated in some way with Mr Knight’s Mythbusters Books (and other associated activities, such as interviews and plans to develop a television show of his own) when in fact, as is acknowledged by both parties, there was never any such association. Determination of this issue involved a consideration whether Mr Knight’s reputation in relation to the name was sufficient to provide a reasonable basis for such an assumption of association.

The trial judge concluded as a question of fact that the development and adoption of the name had nothing to do with Mr Knight or any of his ideas, and that it was a belated choice because "it was a catchy term descriptive of the activities portrayed by the Mythbusters TV show".His Honour analysed the material supplied by Mr Knight, including material which his Honour held was not received by Beyond, and found no similarity between the content of Mr Knight’s Mythbusters Books and other materials and the content of the Mythbusters TV Show.

The Full Court agreed that Mr Knight failed to prove a sufficient connection between the Mythbusters TV Show and his books: "any reputation vested in Mr Knight’s Mythbusters Books, quite apart from being limited to a narrow class of television broadcasters and executives, was not sufficiently widespread to create an association in the mind of the ordinary television viewing public with the Mythbusters TV Show when that show entered the public arena in late 2004."

we are of the view that the term ‘Mythbusters’ describes, in general terms, the breaking of beliefs or understandings wrongly held in relation to a certain topic or proposition, and is therefore in a broad sense descriptive.  It is, however, also true that when one looks at the Mythbusters TV Show, the type of myths it addresses, the personalities of the presenters, the format of the show, the script, and the methods used are not described by the term ‘Mythbusters’, and to this extent the term is not descriptive.  His Honour so concluded, and he used the expression "to an extent at least" at... to indicate that the name ‘Mythbusters’ was only broadly descriptive of the process of "busting" myths, and did not describe the detailed content of the program with any specificity.