The 1980s hit song, Down Under, sung by Aussie pop group, Men at Work and nursery rhyme Kookaburra Sits In The Old Gum Tree (Kookaburra song) are as Australian as summer barbeques in the backyard. However, the similarity between these two loved anthems goes beyond our cultural heritage – they were recently the subject of a heated copyright dispute fought out in the Australian courts.

In a victory win, the Federal Court recently confirmed Mars Australia Pty Ltd (Mars) can register the purple shade used on its’ range of Whiskas cat food packaging as a trade mark (Mars Australia Pty Ltd  v Société des Produits Nestlé SA [2010] FCA 639 [
This case goes back to 2002 when Mars applied to register the shade of purple which it uses in its “Whiskas” brand of cat food as a trade mark.

When the Trade Marks Office accepted the trade mark, Société des Produits Nestlé SA (Nestle) opposed acceptance of the application. Nestle argued that the purple colour was not enough to distinguish Mars’ pet food from pet food manufactured by other traders’.

In April 2010, the Federal Government announced plans to enact legislation to force packaging for tobacco products to be changed to plain or generic packaging from 2012 onwards. Should it be enacted, this controversial legislation would have numerous intellectual property implications.

The Plain Tobacco Packaging (Removing Branding from Cigarette Packs) Bill 2009, essentially seeks to prohibit the use of colour, decoration, embossing and trade marks on packaging of all tobacco products. Tobacco packaging, it proposes will instead appear in a matt brown colour and consumers would then only be able to distinguish between different products via the product name printed on the front in 12 point size black Helvetica font (a very clear font with no embellishment).

The resale royalty scheme for visual artists commenced in Australia on 9 June 2010. It provides artists (and their beneficiaries) with the right to receive five per cent of the sale price when their original works are resold through the art market for a sum of $1000 or more.

A trade mark is a sign which distinguishes the goods or services of one trader from those of another.   It is property and something which the owner can license or sell.  As it communicates a business’ reputation, it can be one of the most valuable assets of a business – it is worth protecting.

Novelty
One of the most important requirements under the Patents Act 1990 (Cth) for an invention to qualify for patent protection is that it must be novel.  For an invention to be novel, it must not have been publicly used or published anywhere in the world. Public disclosure can include publication in a printed media, disclosure in a presentation or public demonstration, or substantial publication of the material on a website, including a blog or other discussion forum.

Types of Patent Searches
Patent searches can provide peace of mind to a person who is interested in applying for a patent or even for someone who is entering the market with their new product.  While no patent search can be 100% foolproof, they may help prevent heartache, not to mention potential savings in investment on an invention.  If the medical adage “prevention is often better than the cure” is true, then surely so too is the legal equivalent  “prevention is better than litigation”.
There are several types of searches to cover various scenarios that may be faced depending on what is wished to be done with a new product.

There are a number of different registration mechanisms in Australia for names each of which offer different advantages and have different requirements.  This can make it confusing for new businesses in trying to understand what needs to be registered, when and for what purpose.

Why a name is important
When selecting a new name for a business, product or service, most businesses are looking for a name which distinguishes them from their competitors and which is appealing to consumers.  Generally, the name needs to evoke a particular quality, characteristic or value of the business.  It is important because it is the name which will identify the business, product or service to the consumer – essentially is represents the business and associates it with the reputation and quality that the business/service provides.  If a business becomes successful, the name will become an important asset - it is the name which sells the product or service.

Aside from finding a name with market appeal, perhaps a more important consideration is finding a name which is available to use and, preferably, also one that can be protected.  If the name is already taken, the new user of the name may be forced to change it, destroying any reputation and hard work developed in the business.

Australia’s design registration system changed in June 2004. The key features of the Act include: