An insight into the work of our client, Steriline Racing, a dominant force in the thoroughbred racing industry worldwide, and manufacturers of the world’s biggest starting gate, used at Flemington Racecourse for Australia’s famous Melbourne Cup.
The Lead SA: Starting when the nation stops
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The South Australian Government has announced two new wine industry grant programs which have opened recently as part of the $1.8 million South Australian Wine Industry Development Scheme – encouraging growth in the wine industry and to further promote South Australia as a producer of premium wine.
The $1 million Cellar Door Grants Program
To assist SA wineries to upgrade and diversify their cellar door experience.
Applications for the Cellar Door Grants program close at 5pm, 16 November 2016.
The $600,000 Regional Wine Industry Association Grants Program
To assist regional grape and wine industry associations to develop regional wine tourism and visitor experiences.
Applications for the Regional Wine Industry Association Grants program close at 5pm, 25 November 2016.
A further $200,000 has been committed toward new major wine events and promotions, helping to showcase the state’s premium wine to local and international markets.
More information about the South Australian Wine Industry Development Scheme can be found at www.pir.sa.gov.au/winescheme
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A rare decision was recently handed down by the Australian Plant Breeder’s Rights Office, revoking a granted Plant Breeder’s Right (PBR) for a variety of the native Australian grass Lomandra known as ‘Lime Tuff’. The PBR grantee was Bushland Flora (‘Bushland‘) and the applicant for revocation was Majestic Selections Pty Ltd (‘Majestic‘). Majestic successfully made out two grounds for revoking the PBR.
THE VARIETY WAS NOT DISTINCT
For a plant variety to be registrable it must be “distinct”. A distinct plant variety is one that is “clearly distinguishable from any other variety whose existence is a matter of common knowledge”.
A variety may become common knowledge for a number of reasons, including commercialisation of propagating or harvested material of the variety, the variety being the subject of a PBR application resulting in the grant of a PBR right, or the public availability of plant material in a collection.
The first ground pressed (and subsequently made out) by Majestic was that the variety of Lomandra the subject of the PBR, ‘Lime Tuff’, was not clearly distinguishable from a variety of common knowledge known as ‘Little Pal’.
Majestic attempted to show the relatedness of ‘Lime Tuff’ to 23 samples of Lomandra through the use of DNA evidence, specifically, the presence or absence of a suite of molecular markers.
The Delegate considered that the usefulness of DNA evidence in determining distinctiveness is limited, and that the DNA evidence provided by Majestic established relative relatedness between ‘Lime Tuff’ and the other varieties, but not necessarily phenotypic similarity.
The Delegate then considered phenotypic similarity between ‘Lime Tuff’ and other prior existing Lomandra varieties.
Majestic’s botanical expert indicated that there were only slight morphological differences between ‘Lime Tuff’ and the other Lomandra varieties and that “[t]hey all form robust tussocks with very numerous, narrow leaves of the same yellow-green colour and texture, both are equally hardy and adaptable to a wide range of conditions in horticultural applications, and they do not differ in method(s) of propagation.”
In view of the Expert’s evidence, the Delegate found that ‘Lime Tuff’ was not clearly distinguishable from the other Lomandra varieties (including ‘Little Pal’).
The Delegate then had to consider whether one or more of the other Lomandra varieties (including ‘Little Pal’) were plant varieties of common knowledge that existed prior to the PBR application for ‘Lime Tuff’. ‘Little Pal’ had been sold to a school prior to the filing date of the PBR application.
The Delegate indicated that this sale was sufficient for the variety to be considered as commercialised and was therefore common knowledge. The Delegate also indicated that it is how a plant variety looks that is important in determining whether it is common knowledge, rather than the labelling under which a plant variety is sold.
THE VARIETY HAD NO BREEDER
For a plant variety to be eligible for PBR protection, it must have been bred. Consequently, a PBR application must describe the breeding involved and nominate the breeder.
The second ground pressed (and subsequently made out) by Majestic related to the PBR application for the variety ‘Lime Tuff’ inaccurately describing the breeding process.
The breeder of ‘Lime Tuff’ intended to select progeny resulting from the hybridisation of Lomandra longifolia and Lomandra confertifolia subsp. pallida.
However, evidence from the Melbourne Herbarium and Majestic’s botanical expert suggested that ‘Lime Tuff’ was not the result of hybridisation, and therefore, as Bushland submitted no evidence to the contrary, the Delegate held that ‘Lime Tuff’ was not bred as described.
This decision teaches us that a plant variety the subject of PBR will be deprived of registrability if it is not clearly distinguishable from another variety that has been sold prior to the filing date of the PBR application, regardless of whether the breeder is aware of the other variety. It also does not matter what name the other variety is sold under, it is what the variety looks like that is important.
This decision also highlights the importance of accurately recording the breeding methods used to produce a plant variety, lest the PBR be susceptible to revocation. If there is any doubt as to whether the variety is clearly distinguishable from known varieties, it may be wise to seek independent verification of a variety by, for example, a Herbarium, before filing the PBR application. This may also help resist an attack on the breeding methods of the PBR.
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An insight into the work of our client, Beston Global Food Company, who have developed sophisticated anti-counterfeit and traceability technology helping to protect the integrity of premium Australian food products overseas, ensuring that consumers are receiving authentic, non-counterfeit products.
The Lead SA: Food security app protects premium Aussie foods in Asia
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The case of Qantas Airways Ltd v Edwards
Qantas uses a variety of “kangaroo” trade marks as part of its business, including the “kangaroo tail fin” logo below which it registered in Australia in 1996 for advertising, marketing and merchandising services and financial, investment and banking services associated with the use and promotion of credit cards and charge cards (Registration No. 711454):
In a recent Federal Court case, Qantas has unsuccessfully opposed an application by Mr Luke Edwards to register the following “kangaroo t-shirt” logo as a trade mark:
Mr Edwards operates an online retail store selling a range of goods including clothing and apparel. In 2010, Mr Edwards applied to register his “kangaroo t-shirt” logo above as a trade mark, for use in relation to clothing; footwear; headwear; shirts; T-shirts. At the time, Mr Edwards’s online store offered t-shirts branded with his “kangaroo t-shirt” logo.
Qantas formally opposed the registration of the “kangaroo t-shirt” logo on a number of grounds but the Delegate of the Registrar of Trade Marks found in favour of Mr Edwards.
Qantas appealed the decision to the Federal Court, claiming that the “kangaroo t-shirt” trade mark was deceptively similar in appearance to Qantas’s existing Trade Mark Registration No. 711454 for the “kangaroo tail fin” logo. In addition, Qantas claimed that the goods/services covered by the two marks were closely related, ie that Mr Edwards’s clothing; footwear; headwear; shirts; T-shirts were closely related to Qantas’s advertising, marketing and merchandising services.
Qantas also claimed that it had a strong reputation in Australia in relation to various registered and unregistered “kangaroo” trade marks it had used for many years and, because of this reputation, Mr Edwards’s use of his “kangaroo t-shirt” trade mark would be likely to deceive or confuse consumers. Qantas argued that consumers would simply see Mr Edwards’s “kangaroo t-shirt” logo on clothing as an extension of the Qantas brand.
The Federal Court dismissed both grounds of opposition and found in favour of Mr Edwards.
The Court held that Qantas and Mr Edwards’s trade marks were not deceptively similar in appearance, as each of the marks has a separate, distinctive element apart from a kangaroo. The Court also held that the goods/services covered by the two marks were not closely related. The Court noted that Qantas’s advertising, marketing and merchandising services were no more or less related to Mr Edward’s clothing; footwear; headwear; shirts; T-shirts than ‘any other goods or services that can be advertised, marketed or merchandised’ and that there was, therefore, no close relationship between the two.
In assessing Qantas’s reputation in its various “kangaroo” trade marks, the Court found that two of these “kangaroo” marks ‘would have been recognised by a substantial number of ordinary members of the public as marks denoting [Qantas’s] airline services’. However, the Court determined that there was no likelihood that consumers would be deceived or confused on seeing Mr Edwards’s “kangaroo t-shirt” trade mark used for clothing; footwear; headwear; shirts; T-shirts given the differences between the marks.
Qantas has now filed a new application for the “kangaroo” logo below covering a wide range of goods/services in 15 classes including various items of clothing (No. 1703712). Mr Edwards has opposed this application and it will be interesting to see the outcome of these proceedings.
This case highlights the importance of considering the different types of marks which are important to your business. In addition to registering brand names as trade marks, logos and other types of trade marks are also registrable and may be just as valuable.
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