Australia’s “grace period” provisions allow a patent applicant to disclose or use their invention within 12 months before filing a complete patent application in Australia. In an interesting interpretation of those provisions, the Australian Patent Office has found that the grace period applies to whole of contents citations published after a patent application has been filed.
The emergence of “plausibility” as a test for inventive step, sufficiency and industrial applicability represents a significant legal development in Europe in recent years. Now the concept of plausibility has reached Australian shores, with the Australian Patent Office applying it in a test for sufficiency.
Christian Louboutin (Louboutin) has again been successful in a long running opposition proceeding filed by Roland SE (Roland) against its red sole trade mark in the European Union.
Louboutin has faced legal challenges around the world in registering and enforcing its signature red sole on its shoes. In 2010, Louboutin filed a Community Trade Mark application for the below trade mark in class 25 for “high-heeled shoes (except orthopaedic footwear)” (Louboutin Mark):
(Louboutin Mark)
On 8 June 2015, the Council of the European Union published the final texts of its proposal to amend the Community Trade Mark Regulation (Regulation) and Trade Mark Directive (Directive).
The revised drafts reflect the key issues which have been the subject of significant debate in the last year, including:
On April 29, 2015, U.S. Register of Copyrights, Maria Pallante, testified to the House Judiciary Committee providing the Copyright Office’s perspective on updates to U.S. copyright law. In addition to recommending a more autonomous Copyright Office and flagging policy issues that warrant further analysis and attention, Ms. Pallante identified eight issues deserving current legislative action:
1. Music Licensing. After undertaking a comprehensive study last year to assess the impact of copyright law on the music marketplace, the Copyright Office recommends
On January 9, 2015, a decision of the Italian Patent and Trademark Office (Ufficio Italiano Brevetti e Marchi, hereafter ‘UIBM’) rejected an opposition made by Jaguar Land Rover Limited (Land Rover), in order to prevent the registration, in Italy, by China Depend Limited (China Depend) of a figurative trademark. The trademark was formed by two Chinese ideograms corresponding to the sign used in China by Land Rover to identify its activity, which once translated means ‘land’ and ‘tiger’, but allegedly commonly translated into ‘Land Rover’ ( Ideogram Trademark).
Land Rover, owner of the two Italian word trademarks ‘Land Rover’ and ‘Range Rover’ (Land Rover Trademarks), filed an opposition pursuant to Article 12, paragraph 1, letter d) of the Italian Intellectual Property Code setting forth the likelihood of confusion between similar trademarks. In particular, the provision provides that signs cannot be registered as trademarks if, at the date of the registration filing, they are similar or identical to other trademarks previously registered by third parties in the same country or are enjoying protection in the same country.
On 8 March 2014, Malaysian Airlines flight 370 disappeared. Five days later, Aoan International Pty Ltd (Aoan) filed an application to register MH370 as a trade mark in class 41 of the NICE classification of goods and services for various services.
IP Australia initially rejected the application under section 41 of the Trade Marks Act 1995 (Cth) (Act) on the basis that other traders should be entitled to refer to MH370 with respect to the services proposed to be offered by Aoan. IP Australia then reconsidered its decision and decided to reject the application under section 42(a) of the Act saying that the trade mark was scandalous on the basis that the trade mark would offend a section of the community. Read More
Decision in Cantarella Bros Pty Ltd v Modena Trading Pty Ltd Clarifies Test for Distinctiveness of Trade Marks in Australia
This week, the High Court of Australia (High Court) handed down only its third decision considering trade mark issues since the enactment of the Trade Marks Act 1995 (Cth). This decision could make it easier to register foreign language words as trade marks.
Sound Marks in Australia
In September, IP Australia accepted for registration a trade mark described as “the Trade Mark consists of the sound of a fictitious character saying the word “Simples!” followed by a squeaking sound such as might be expected to be made by a Meerkat or other small animal”. You can listen to this trade mark here. This application was filed for an array of goods and services by the UK company BGL Group Limited. Read More
Research Affiliates LLC v Commissioner of Patents [2014] FCAFC 150
On 10 November 2014, the Australian Full Federal Court (Court) held that a method of creating an index of securities using a standard computer was a ‘scheme’, and, hence, not a patentable invention.
The Court applied the Australian High Court test from National Research Development Corporation v Commissioner of Patents (1959) 102 CLR 252 that a patentable invention must produce an “artificially created state of affairs”. The Court said that this test is not satisfied by mechanistic application of artificiality or physical effect, but by understanding the claimed invention as a matter of substance not form. Read More
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