Welcome to Privacy Awareness Week (‘PAW’), 29 April to 5 May 2012.

Privacy Awareness Week 2012 runs from 29 April to 5 May and is all about promoting awareness about privacy rights and responsibilities in the community.

Cooper Mills are proud to be a PAW Partner for 2012 again. As part of privacy awareness week we will be publishing a number of tips about privacy law.

Watch our blog and Twitter feed @coopermills

Optus has today suspended its  TV Now service, following a successful appeal against its earlier win in which the Federal Court had held that Optus was not liable for copyright infringement under the Copyright Act (Cth).

The case emerged from the Optus TV Now service which enabled Optus customers to record live TV and watch it at a later time, including AFL and ARL. The Court had earlier held that the action of recording was that of the customer and not Optus.

Optus now has 21 days in which to seek leave to appeal to the High Court.

More to follow.

In a judgment handed down by the High Court today, the appeal by AFACT against iiNet’s earlier wins in the Federal and and Full Federal Court, has been dismissed.

In what is seen as a major blow for AFACT, who represents the heavy weights of the music and film industry, the High Court brought down a unanimous decision.

More to follow.

ASX Listed M2 Communications has acquired Primus from US parent Primus Telecommunications Group (‘PTG’) in what is reported to be a $192.4 million deal.

It is reported that the transaction is not conditional on shareholder approval, and is due to complete in the second quarter of 2012.

The move comes amid restructuring by PTG of its Australian and Canadian businesses, while the purchase is yet another in M2′s strategic acquisitions, coming hot on the heels of its acquisition of Time Telecom earlier this year.

The Australian Consumer and Competition has today reported that it is launching legal proceedings against Apple claiming that it is misleading consumers.

The ACCC’s actions arises from Apple’s  claims that the latest iPads are 4G. It has been reported that the new iPad is not in fact compatible with 4G services currently offered in Australia as they cannot operate on the frequencies that Telstra use to operate its 4G or LTE network.

In its press release today, the ACCC said:

The ACCC alleges that Apple’s recent promotion of the new “iPad with WiFi + 4G” is misleading because it represents to Australian consumers that the product “iPad with WiFi + 4G” can, with a SIM card, connect to a 4G mobile data network in Australia, when this is not the case.

The ACCC alleges that Apple’s conduct contravenes sections 18, 29(1)(a), 29(1)(g) and 33 of the ACL.

The ACCC is seeking urgent interlocutory relief to ensure consumers are made aware of the correct technical capabilities of this device.

Additionally the ACCC is seeking final orders including injunctions, pecuniary penalties, corrective advertising and refunds to consumers affected.

The matter is due to be heard for the first time before the Federal Court of Australia in Melbourne tomorrow.

In spirited bidding today, homeloancalculator.com.au sold for $33,001 on Netfleet’s drop catching service.

The buyer is Aura Capital Pty Ltd who is an ‘independent advisory and investment business‘ reported to have interests in the mortgage broking industry including 1300HomeLoan and Loan Market.

This sale further confirms the nature of the .au domain name market, as one which is going from strength to strength.

We are often asked, does it matter who the applicant for registration of a trade mark is ? It is essential that the correct trade mark owner be named as the applicant for registration of your trade mark.  Incorrectly naming the applicant can give rise to potential cancellation of the trade mark from the Trade Mark Register in the future.

The proper owner of a registered trade mark is either the first person to use that mark in Australia in respect of the designated goods or services (if that use is prior to the application to register the mark) or otherwise the first person to apply to use that mark in respect of the designated goods or services where that person intends to use that mark.

A person can use (or intend to use) a trade mark by applying the trade mark to goods or services themselves, or by way of licensing third parties to use the trademark.   Accordingly, if you are using a trademark under licence from someone else, you may not be the appropriate applicant for the trademark.  Instead, the person who licences your use (the licensor) would be the correct applicant for registration of the trademark.

You should also be aware that, prior to registration, the right to apply for a trade mark by reason of first using the trade mark flows with the goodwill associated with the trade mark,  for example, if you purchase a business but not the goodwill in the business, you may not have obtained clear title to apply for trade marks used in the business.  Clear proof of title should be assured prior to applying for a trade mark on the basis of first use.  If there is any doubt, you should obtain an assignment of the goodwill and the trade marks from any other previous and current users of the trade mark, prior to applying for registration.

It is possible that two or more persons have an interest in a trade mark so that they should be named as joint owners,  for example, use of a trade mark by a partnership or joint venture may give rise to joint ownership.  It may be advisable for the partnership or joint venture to incorporate a vehicle for the ownership of intellectual property and assign the trade mark and goodwill associated with it to that corporate vehicle.  That vehicle can then apply for registration of the trade mark and licence back the trade mark to the partners or joint venturers.

Before you apply for trade mark registration, think about who the proper applicant should be.

The process of applying for registration of your trade mark, and obtaining registration of your trade mark has many advantages over non-registered trademarks, including:

1. registration of your trade mark can be obtained by you even if you haven’t used the trade mark – an intention to use is enough to obtain registration;
2. it is not necessary to prove the existence of a reputation in the registered trade mark in order to stop others from using it;
3. the TradeMark Register provides a simple mechanism by which other traders (or consumers) can see whether a monopoly is claimed by you over the use of your mark for particular goods or services;
4. the application process provides a simple mechanism by which you can determine whether your proposed use of your mark will likely infringe another’s registered trade mark;
5. you can give a notice to the Australian Customs Service, objecting to the importation of goods which infringe your registered trade mark.

Cooper Mills Trade Mark Lawyers can offer you advice and assistance in all trade mark related matters including registrations and oppositions.

auDA has today announced the membership of the 2012 Industry Advisory Panel.

The Panel has been set up to review the structure, regulation and competition in the Australian domain name industry.

Cooper Mills Director, Erhan Karabardak has been appointed to the Panel, which will commence its review in March. The Panel also includes representatives of the ACCC and the ACMA.

The ACCC today (14 February 2012) announced that Telstra Wholesale ADSL services are now declared under an interim access determination.

The determination made under the Consumer and Competition Act 2010 has fixed the price Telstra can charge its wholesale ADSL customers, the effect of this is that wholesale customers are now benefiting from lower pricing.

The price reductions will see competitors such as iiNet better able to compete with Telstra’s retail product offering.

This will only serve to bring more scrutiny on NBN pricing and the benefits of cost effective ADSL services in the market place.