Australian Trademarks Lawyer & Attorneys : Nicholas Weston Law Firm : Copyrights, Intellectual Property

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As of 1 June 2008, a new and more flexible registrant transfer policy comes into effect, allowing domain name registrants to transfer their domain name licence to another eligible entity for any reason. The new policy has been approved by the Australian domain name administrator .au Domain Administration Ltd (auDA) - the policy authority and industry self-regulatory body for the .au domain space.

Key Features of the New Policy

Exact details and wording of the new policy is not yet available. However, the following key features of the policy are available here and can be summarised as follows:

• .au domain names can not be registered for the sole purpose of resale;
• a 6 month holding period for newly registered .au domain names applies;
• after 6 months domain names may be offered for sale/transfer by any means;
• standard transfer forms will be used for processing transfers; and
• auDA will ask parties for voluntary and confidential disclosure of the sale method and price.

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Cadbury has lost the latest battle over the exclusive use of the colour purple on chocolate wrapping but, regrettably, the chocolate wars are probably still far from over. On Friday 11^th April, Justice Heerey in the Federal Court gave his judgment in respect of the ‘further trial’ of the action brought by Cadbury against Darrell Lea for having the temerity to use purple in some of its chocolate wrapping. (Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 8) [2008] FCA 470). The action was based on passing off and an alleged breach of s52 of the Trade Practices Act which prohibits corporations from engaging in conduct that is misleading or deceptive or which is likely to mislead or deceive.

A little bit of background to this latest decision is probably necessary for those who, for reasons only known to them, have failed to follow the fate of purple in Australian litigation. At the original trial in 2006, Justice Heerey found for Darrell Lea and held certain expert evidence from Cadbury inadmissible. While there was a lot of evidence that consumers associated purple with Cadbury chocolate, there was also a lot of evidence of uses by other chocolate makers of purple and many factors which distinguished Darrell Lea from Cadbury chocolate. For example, the words Darrell Lea written prominently on Darrell Lea chocolate were subtle hints to consumers that the chocolate in question was not Cadbury. Some consumers actually picked up on the point.

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In Hansen Beverage Company v Bickfords (Australia) Pty Ltd [2008] FCA 406 (31 March 2008) the success or otherwise of both the claim and the cross-claim turned on each party evidencing a sufficient reputation of its product amongst Australian customers by reference to the unregistered marks MONSTER and MONSTER ENERGY in the context of deciding whether there had been a passing off at common law or a contravention of s 52 of the Trade Practices Act 1974 (Cth) (TPA).

The applicant (Hansen) alleged that the adoption of the brand MONSTER ENERGY (the second biggest selling energy drink in the world, behind Red Bull), or its contraction MONSTER, for energy drinks by the respondents (Bickfords) conveyed a misrepresentation that the Bickfords product is the product of Hansen or is associated with Hansen. If not, then conversely the cross-claim required Bickfords to establish whether at the relevant time it had a sufficient reputation in Australia in the mark MONSTER ENERGY, or its contraction MONSTER to succeed in its own claim as against Hansen. The parties agreed that the similarities between the products could relevantly mislead or deceive for the purposes of the TPA and the tort of passing off.

Approach

The Court approached the question of the operation of s 52 of the TPA by requiring it to be established that a significant or substantial proportion of persons who would be potential customers within Australia would be likely to be misled.