Tag: licensing agreements

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Beware the pitfalls of informal licensing agreements
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Use it or Lose it – Exercising ‘Control’ Over use of a Trade Mark

Beware the pitfalls of informal licensing agreements

The Federal Court of Australia recently handed down its decision in the copyright case of Hardingham v RP Data. This decision serves as a warning about the risks of informal licensing arrangements. The case centres around copyright infringement regarding the use of photographs and floorplans without authority.

The applicants in the case were Real Estate Marketing (REMA) and its sole director, Mr Hardingham. REMA had been operating its business since 2009 and entered into informal agreements with real estate agencies to create and provide photos and floorplans of properties for marketing campaigns. It was understood by REMA that, as part of marketing campaigns, the agents would upload the commissioned photos to platforms such as realestate.com.au. However, the scope of the permitted uses by the agents was not clearly agreed or recorded in writing.

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Use it or Lose it – Exercising ‘Control’ Over use of a Trade Mark

A unanimous appeal judgment handed down by the Full Court of the Federal Court of Australia earlier this year, signals the importance of trade mark owners exercising “control” over use of their trade mark by licensees, or risk cancellation of the trade mark for non-use.

It is very common for the trade mark owner not to be the actual user of the trade mark. Related parties within the same corporate group may have different functions of ownership or use, or local distributors/licensees may be appointed to use a trade mark owned by a foreign brand owner.

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