Competition Review Paper Released

A draft report by the panel examining whether Australia’s competition policy is ‘fit for purpose’ has been released.

The report, chaired by Professor Ian Harper, considered the current Australian competition policy, laws and institutions in light of changes expected to develop in the Australian economy over the coming decade.

The rise of Asia and other emerging economies, an ageing population and new technological advancements were highlighted as “the three major forces affecting [our] economy” in the next ten years.  The report examined the likely challenges these developments present and made recommendations for preparing Australia’s competition policies for change, which included:

  • Reviewing of anti-competitive regulations, with priority given to those governing planning and zoning, retail trading hours, taxis, pharmacy and parallel imports
  • Improving complaints-handling processes and monitoring
  • Amending section 46 of the Competition and Consumer Act 2010 (Cth) (CCA) so that it targets anti-competitive conduct which substantially lessens competition
  • Streamlining merger approval processes
  • Ensuring flexibility and ease of use in collective bargaining arrangements for small businesses
  • Replacing the National Competition Council with the Australian Council for Competition Policy

The panel also recommended changes to Australia’s intellectual property (IP) regime, including repealing the exception for intellectual property licenses under section 51(3) the CCA. The report argued that while IP rights offer potential incentives for innovation, they “can also be used to facilitate monopolistic or anticompetitive behaviour”, emphasising the need for balance in Australia’s approach to IP rights and competition law.

The report noted the difficulty of achieving this amidst the ongoing developments in technology and changes in the market. 3D printing was used as an example of how the distinctions between the physical and online worlds are becoming increasingly blurred, which will likely have wide implications for the operation of IP and competition laws globally.

The report looked to a range of submissions made as to whether this balance had been adequately achieved under the current competition policies. In its submission, the ACCC argued that “there is no reason to treat [IP] any differently to other services”. Noting “that in other jurisdictions…IP rights are subject to the same competition laws as all other property rights and…there has not been an erosion of IP rights for creators, nor any apparent impact on the incentives for the production of copyright material”.

The Australian Recording Industry Association Ltd, held a contrary view, arguing that “the idea that there is no need for the …exemption because IP should be treated like any other form of property is simplistic and misleading. The exemptions under s 51(3) serve partly as a safety net where broadly defined prohibitions under the [CCA] would otherwise be too far-reaching… [They] are important because they avoid liability where IP licensing conditions are efficiency enhancing.”

With consideration given to the range and complexity of the issues involved, the report proposed “that commercial transactions involving IP rights… be subject to the CCA, in the same manner as transaction involving other property and assets.” Such that the exemption contained in section 51(3) of the CCA be repealed but IP licenses be exempt from the cartel provisions of the CCA; meaning “that IP licenses and assignments will only contravene the competition law if they have the purpose, or would have or be likely to have the effect, of substantially lessening competition”.

These recommendations follow on from previous proposals made by Hilmer, the National Competition Council and the Intellectual Property and Competition Review Committee.

Submissions in response to the Draft Report are invited to be made up until the 17 November 2014.

Remote Access Recommendation

New recommendations looking into Victorian counter-terrorism laws could see police investigators given the power to add, delete or copy data from target computers, if they believe it could prevent a terrorist act.

 

A recently conducted review of Victorian counter-terrorism laws has seen thirteen recommendations made for changes to the state’s counter-terrorism measures. The Review Committee consisted of former County Court judge David Jones, retired Lieutenant General Mark Evans and former Deputy Commissioner Kieran Walshe.

 

The government has backed eight of the thirteen recommendations, with a further four supported ‘in principle’. Among those that have been supported, is the recommendation to amend the Terrorism (Community Protection) Act 2003 (Vic) to allow police remote access to data held on a target computer where there are reasonable grounds to believe that the data will assist the prevention or investigation of terrorist acts.

 

The report explains that this proposal aims to modify the current legislation in response to the technological developments made since the Act was last substantially amended. The Victorian Police also submitted to the Review Committee that this is also a safer and less intrusive option than physically entering premises where the computer(s) in question are located.

 

The report proposed that the authority of the Supreme Court be required in order to obtain a warrant allowing remote access to a computer. The report goes on to clarify that such a warrant would only be issued where the Supreme Court is satisfied that there are reasonable grounds for the suspicion that accessing the target’s computer without their knowledge, would be necessary to prevent or respond to a terrorist act.

 

Under Section 13(a) of the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic), “a person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with”. The report addressed this in relation to the proposed changes and stated that “the power to issue a covert search warrant is sufficiently constrained to circumstances where the search would be a reasonable and justifiable interference with the right to privacy”. The report noted the need to balance an individual’s right to privacy against the nature and gravity of the relevant offences. With respect to this, the report expressed the view that the nature of the warrant would be both a “reasonable and proportionate interference with [the right to privacy]” so “it would neither be unlawful or arbitrary”.

 

In its response to the proposed changes, the government expressed the intention to “review the proposal [to allow remote access to target computers] in the context of the more recent Commonwealth initiatives”. It remains to be seen how this proposal will be implemented and integrated into current Victorian legislation. However, the report recommended that the new powers be modelled on those contained within Section 25A of the Australian Security Intelligence Organisation Act 1979 (Cth).

Thank goodness for good faith

Case note on Australian Postal Corporation v Digital Post Australia [2013] FCAFC 153

In the first instance
In 2012, Australia Post, the Applicant, issued proceedings in the Federal Court of Australia against Digital Post Australia, the Respondent, for trade mark infringement and contraventions of the Australian Consumer Law. The Applicant argued that the Respondent’s trade mark DIGITAL POST AUSTRALIA infringed its registered trade mark ‘AUSTRALIA POST’ in relation to digital mail services. In response to the infringement claim, the Respondent sought to rely on the defence of good faith under ss 122(1)(a)(i) and (1)(b)(i) of the Trade Marks Act 1995:

Section 122
(1) In spite of section 120, a person does not infringe a registered trade mark when:
(a) the person uses in good faith:
(i) the person’s name or the name of the person’s place of business;

(b) the person uses a sign in good faith to indicate:
(i) the kind, quality, quantity, intended purpose, value, geographical origin, or some other characteristic, of goods or services;

The primary judge found that DIGITAL POST AUSTRALIA was not deceptively similar to AUSTRALIA POST. Despite the Applicant’s infringement claim failing, the primary judge addressed the Respondent’s defence of good faith, finding that it had used its trade mark in good faith to indicate the intended purpose of its digital mail service ‘without any desire to be associated with Australia Post or to leverage any of its brands’.

The Applicant subsequently appealed the findings of the primary judge on the grounds that he erred in finding that the trade marks were not deceptively similar and that the Respondent used its trade mark in good faith.

On appeal
The Full Court upheld the primary judges’ conclusion that the marks were not deceptively similar and further addressed whether the Respondent’s adoption of its name was in good faith.
Members of the Digital Post Australia’s board gave evidence in respect of the how its name was adopted. They submitted that the Respondent’s name was one of four shortlisted potential names which were forwarded to its solicitors for clearance searches and subsequently selected on the basis that it was functional and descriptive. While Digital Post expressed concern that there may be a statutory restriction on the use of the word POST in its trade mark, it was not concerned that the name would cause confusion between itself and the Applicant.

The Full Court accepted the Respondent’s evidence that it used its trade mark in good faith to indicate the ‘kind, quality, quantity, intended purpose, value, geographical origin, or some other characteristic, of goods or services’ as set out under s 122 (1)(b)(i). The Court found that unlike the Respondents’ conduct in Anheuser-Busch Inc v Budekovicky Budvar (2002) 56 IPR 182, there was no ‘wilful blindness’ to the potential for confusion on the part of Digital Post Australia. On this basis, the appeal was dismissed.

Lessons
Contrary to the findings in Ansheuser-Bush, this case suggests that the defence of good faith can be successfully relied upon even when the Respondent is aware of the Applicant’s reputation provided registrability advice is sought before adopting a name.

Expired auctions roll out rugs.com.au

In spirited bidding today, the domain name rugs.com.au sold for $22,110 plus GST on drop.com.au.

There were 9 bidders involved in the bidding, with the winning bidder being Adelaide company L.T.D Services Pty Ltd, who also registered a number of other domains.

New Privacy Laws Take Effect

A sweeping change in privacy laws take place with effect from today. The changes will see the introduction of new Australian Privacy Principles known as APPs, which regulate the manner in which personal information is handled by businesses (with a turnover of $3 million or greater), government, personal information traders and health service providers.

What it means for business, is that privacy policies will need to be updated, if they haven’t already been, and processes for the handling of personal information will need to be harmonised with the new laws.

Cooper Mills Lawyers provide advice on all aspects of the new privacy laws, whether it is in audit for compliance with the law or the amendment or preparation of a new privacy policy, we can assist.

Australian Trade Mark Process

Cooper Mills is proud to launch a short trade mark process video to help you understand the Australian TradeMark Process. The simple process is easy to follow and is focused on a business audience seeking to develop and protect their brand.

The video breaks down each step along the way, don’t forget to watch it today. We are also offering a free Trade Marks ebook that will soon be available for download from our website. The trademark ebook called Protect your Brand – a Guide for Business is the perfect companion to this video. In the meantime if you would like a copy of the Trade Marks ebook please give us a call.