The Copyright (New Technologies) Amendment Act 2008, which received the Royal Assent on 11 April 2008, has amended infringement provision relating to the importation of films.

A person will now infringe copyright in a film if that person:

“(a) imports a copy of the film into New Zealand within 9 months of first being made available to the public; and
(b) knows or has reason to believe that the film is imported into New Zealand within 9 months of first being made available to the public; and
(c) is not the licensee of the copyright in New Zealand; and
(d) imports the film into New Zealand other than for that person’s private and domestic use.”

The Copyright (New Technologies) Amendment Act 2008, which received the Royal Assent on 11 April 2008, has amended infringement provision relating to the importation of films.

A person will now infringe copyright in a film if that person:

“(a) imports a copy of the film into New Zealand within 9 months of first being made available to the public; and
(b) knows or has reason to believe that the film is imported into New Zealand within 9 months of first being made available to the public; and
(c) is not the licensee of the copyright in New Zealand; and
(d) imports the film into New Zealand other than for that person’s private and domestic use.”

Allen Hardware Products Pty Ltd v Tclip Pty Ltd [2008] ADO 8, saw delegate Herald consider an application by Tclip for revocation of certain registered designs in the name of Allen Hardware on the basis of lack of entitlement.

The delegate considered that principles relating to inventorship under the Patents Act should be applied to questions of designership under the Designs Act as “Both involve activities of original creativity. Both involve situations where multiple people can be involved in the creative exercise.”

Phillips Ormonde & Fitzpatrick Lawyers’ Fiona Galbraith has published an analysis of the Full Federal Court appeal - Ranbaxy Australia Pty Ltd v Warner-Lambert Company LLC(No 2) here.

The manner of calculating an account of profits by reason of copyright infringement was considered by Heerey J in Tenderwatch Pty Ltd v Reed Business Information Pty Ltd [2008] FCA 931.

On the question of what proportion of the profits made were attributable to the infringement, his Honour considered that the use made of the infringing work was so fundamental to the activities of the infringer that the whole of the profit should be so attributable.

Peter John Ward v Embrey Attachments and The Stanley Works [2008] APO 17 (12 June 2008) related to a Section 223 extension of time within which to comply with section 45(3). Although the need to file search results was abolished in October 2007, this decision is a reminder that the requirement still exists for those cases (albeit a small number) where the search results were completed before 22 April 2007, and examination was requested before 22 April 2007 and the application was advertised as accepted before 22 July 2007. If the former search result requirement is not complied with, then it will affect a patentee’s ability to amend by reason of section 102(2C).

In response to the re-examination report, the Patentee proposed a number of amendments noting that these were for the purpose of overcoming the Examiner’s objections regarding lack of novelty and inventive step. The examiner granted leave to amend without recognizing that the amendments might not be allowable under section 102(2C). Fortunately for the Patentee, it was not possible for the Commissioner to review or reverse this decision to consider the implications of section 102(2C). Whilst in this particular case the Patentee was able to provide a full and frank disclosure to establish a causative error to enliven section 223 and thereby extend the time in which to file the search results, the outcome would have been disastrous for the Patentee if section 223 did not apply and the Examiner has refused the amendments by reason of section 102(2C).

This case (The Commonwealth of Australia v John Murray Charlesworth [2008] APO 16 (3 June 2008)) related to a successful challenge by the Commonwealth of Australia, c/– Minister for Defence under Sections 32 and 36 of the Patents Act in respect of a water concentration measuring device conceived by Dr John Murray Charlesworth while employed by Defence Science and Technology Organisation (DSTO).

In E. & J. Gallo Winery v Lion Nathan Australia Pty Limited [2008] FCA 934, handed down on 20 June 2008, Flick J considered a claim by Gallo that Lion Nathan had infringed Gallo’s trade mark BAREFOOT, registered in relation to wine by the sale of beer under the trade mark BAREFOOT RADLER.

Flick J also held that Lion Nathan was entitled to succeed in its application for revocation of the Trade Mark on the ground of non-use. While there were sales of BAREFOOT wine in Australia during the relevant period, the use of the trade mark by reason of those sales was not attributable to Gallo. In considering whether there were in fact any sales at all in the relevant period, his Honour rejected as inadmissible, evidence purporting to establish the offer for sale of wine at some time in the past on the basis of material obtained from the “Internet Archive Wayback Machine”.