In Mars Australia Pty Ltd v Sweet Rewards Pty Ltd [2009] FCAFC 174 the Federal Court of Australia Full Court rejected claims by the manufacturer of Maltesers against the manufacturers of malt balls that were sold in jars in supermarkets and discount stores that it represented to consumers and traders that its product is associated with or has the endorsement, approval, sponsorship or licence of Mars.

The Full Court held that the primary judge was not in error in concluding that the Sweet Rewards label, considered as a whole, was not deceptively similar to the trade marks and did not pass off the goods to which it was affixed as Maltesers or otherwise a Mars product. There was no misleading or deceptive representation made by the use of its label by Sweet Rewards.

The Full Court said:

27 The words “Malt Balls” are descriptive of the Sweet Rewards product and were accepted in the evidence as an accurate description. The style in which those words are written, being a cursive style on a diagonal angle from bottom left to top right, similar to the way the word “Maltesers” is written on the Mars product, does not change this conclusion.

28 Neither the words “Malt Balls”, the red colour nor the depiction of the product in the whole and in cut through are used as a trade mark by Sweet Rewards. They are not used to distinguish the malt balls as the goods of Sweet Rewards, nor do they represent that the goods are Maltesers, that they are equivalent to Maltesers or that they are otherwise the goods of Mars…

The Resale Royalty Right for Visual Artists Act 2009 was assented to on 9 December 2009.

The Act establishes a statutory scheme which gives a resale royalty right for visual artists for the life of the artist plus 70 years. It will entitle visual artists to a royalty payment on the sale price of any commercial resale (“the secondary art market”) of their original works of art over $1,000 on works acquired after the legislation takes effect. The scheme will apply to Australian citizens or permanent residents, with foreign nationals covered on a reciprocal basis.

The resale royalty payable is a flat 5% of the sale price on the commercial resale of an artwork.

The scheme will start no later than 9 June 2010.

An artwork means an original work of visual art that is created either by an artist or artists or produced under the authority of the artist or artists. The term ‘visual art’ is intended to cover original graphic and plastic art, as well as other forms of original visual arts or craft, such as textiles and new media works.

It applies only to a commercial resale where the transfer of ownership of the artwork is from one person to another for monetary
consideration and is not the first transfer of ownership of the artwork.

The scheme will not include private sales between individuals, nor organisations not in the business of dealing in works of art.

IP Australia has commenced a second round of consultation on IP Rights Reform by issuing a consultation paper. The paper covers proposals relating to:

• Getting the Balance Right
• Exemptions to Patent Infringement
• Resolving patent opposition proceedings faster
• Resolving trade mark opposition proceedings faster
• Resolving divisional applications faster

A second consultation paper and associated drafting instructions will be released in the near future. The second paper will cover proposals set out in:

• Flexible Search and Examination
• Streamlining the Patent Process

Submissions close on 12 February 2010.