PATENTS

CHINA URGED TO OVERHAUL PATENT SYSTEM

The European Chamber of Commerce in China (ECCC) has released a report in which it has made 52 recommendations to reform China's patent system.

The report critiques the current patent system, saying that it hampers China's capacity to innovate new technology because patents are often registered without strong proof of innovation and discourages global investment due to the theft of technology, piracy and unfair competition.

A survey conducted by the ECCC, the results of which were revealed in this report, indicated that 22% of the foreign investors surveyed are considering moving their projects elsewhere as a result of the current patent system in China.

TRADE MARKS

GRANOLA GRADUATES FROM TRADE MARK TO GENERIC TERM

In Australian Health & Nutrition Association Ltd (t/as Sanitarium Health Food Company) v Irrewarra Estate Pty Ltd (t/as Irrewarra Sourdough) [2012] FCA 592, the Australian federal Court held that irrewarra had not infringed Sanitarium's registered trade mark, granola, which it has had registered since 1921.

Jagot J held that Irrewarra had merely used the term "granola" to describe its cereal product and had not used the term in such a way as to distinguish its product from other traders. further, it was held that the term "granola" had evolved into a generic description of a cereal product.

This case serves as an important lesson to trade mark owners to ensure they protect their trade marks from becoming generic terms. This can be achieved by ensuring that even a word such as "granola" is used as a brand or a badge of origin.

CONSUMER LAW

SINGAPORE'S LEMON LAWS COME INTO EFFECT

On 1 September 2012, Singapore's "Lemon Laws" came into effect.

According to the Consumers Association of Singapore (CASE), the Lemon Laws will provide consumers with remedies for goods that fail to conform to a relevant sale contract at the time of delivery (known as "lemons"). CASE states that, under the new laws, consumers will be able to report a defect in goods (but not services) to retailers within six months of purchase. If they do, the assumption will be that the defect existed at the time of delivery, unless the retailer can prove otherwise (or if the items have a short life span or are consumables). The laws oblige retailers to repair, replace, refund or reduce the price of the defective goods.

If a defect is reported after the six-month period, consumers may still seek recourse but the onus will shift to the consumer to prove that the defect existed at the time of delivery.

The Lemon Laws have been implemented following public consultations undertaken by a taskforce co-chaired by the Ministry of Trade and Industry and CASE.

SOCIAL MEDIA

ADVERTISING STANDARDS APPLY TO FACEBOOK POSTS

The Australian Advertising Standards Board (Board) recently determined that the provision of the Advertisers Code of Ethics (Code) applied to Facebook "fan" pages.

The Board was unconvinced by the arguments of Diageo Australia Ltd that its Smirnoff Facebook Page was a "tool to network with adult consumers of legal purchase age for alcohol" and instead found that the page was a "marketing and communication tool", which Diageo had a reasonable degree of control over and was using to draw the public's attention to, and promote, its product.

In this context, the Board held that Diageo was responsible for all content on the page, even content uploaded or posted by a third party, but did not find any of the content of the Smirnoff Facebook Page to actually be in breach of the Code.

COPYRIGHT

ONLY A CHANGE OF LAW CAN SAVE TV NOW

In our previous issue,we noted that Singtel Optus (Optus) was to appeal the decision of the Full Federal Court that its TV Now recording system infringed the Australian Copyright Act 1968 (Cth). That appeal has now been denied by the High Court of Australia.

While the High Court's decision means that Optus has no further legal avenue of appeal, media reports suggest that Optus is hoping the law might be changed following the review of copyright laws and the digital economy currently being undertaken by the Australian Law Reform Commission (ALRC).

The ALRC has released an issues paper inviting interested parties to make a submission and is due to report at the end of November 2013.

The issues paper is available here.

© DLA Piper

This publication is intended as a general overview and discussion of the subjects dealt with. It is not intended to be, and should not used as, a substitute for taking legal advice in any specific situation. DLA Piper Australia will accept no responsibility for any actions taken or not taken on the basis of this publication.


DLA Piper Australia is part of DLA Piper, a global law firm, operating through various separate and distinct legal entities. For further information, please refer to www.dlapiper.com