Resale royalty scheme for visual artists
The Resale Royalty Right for Visual Artists Bill has been introduced into Parliament. This legislation provides a resale royalty right for Australian visual artists.
The scheme is expected to be in place by 1 July 2009. Under this right, visual artists will have a right to receive a share of sales of their artistic works on the secondary market for all works of art acquired after the legislation comes into effect over a threshold of $1000 at a rate of 5 percent.
The Bill has been referred to the Standing Committee on Climate Change, Water, Environment and the Arts for an advisory report by 20 February 2009.
Drink name dispute to be reheard
In Hansen Beverage Company v Bickfords (Australia) Pty Ltd [2008] FCAFC 181 the Full Court of the Federal Court of Australia allowed an appeal against the trial judge's decision that the use by Bickford's of the name "Monster" for its energy drink was not a misrepresentation by Bickford's that its drink was associated with Hansen's "Monster Energy".
There was no dispute that the similarities between the products could relevantly mislead or deceive for the purposes of the Trade Practices Act and the tort of passing off but the trial judge decided that Hansen failed to prove that as at the date when the conduct commenced, that it had the requisite reputation in the name or goods in Australia. Hansen's product was sold in USA but not trademarked in Australia.
The Full Court decided that the issue of reputation should be remitted to the primary Judge for reconsideration as he had erred in law by referring to the issue of a target market.
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Trade Mark Counterfeit - Review of penalties and additional damages
IP Australia has recently completed a review of the penalty provisions in the Trade Marks Act 1995. The review also considered additional damages in civil actions for trade marks.
IP Australia considers that the maximum penalties for indictable offences should be raised to the same level as in the Copyright Act primarily because of the Commonwealth policy of consistency of penalty levels between similar offences.
IP Australia considers that introducing additional damages as an available remedy for civil actions should be adopted primarily to allow for a punitive response where necessary in civil action for trade mark infringement.
IP Australia is seeking written comments by 27 February 2009.
