Australia: IPT INSIGHTS : Intellectual Property

Last Updated: 25 February 2012
Article by Matthew Glynn and Anthony Willis



The High Court of Australia denied Apple's request for special leave to appeal, which effectively allows Samsung to sell its Galaxy Tab 10.1 in Australia. Apple had appealed against the Full Federal Court's decision lifting an injunction against sales of the Galaxy Tab 10.1.

In its decision, the High Court agreed with the Full Federal Court that the original court decision to grant the injunction had not sufficiently considered the merits of Apple's claim that the Galaxy Tab 10.1 infringed Apple's patents.

The decision comes on the heels of a US District Court decision in a related case in California, where the judge denied an interim injunction in favour of Apple against sales of Samsung's Galaxy tab 10.1.



The People's Republic of China Trademark Office has refused the Chinese wine and spirit company Shenzhen Ying Jun's application to register the mark "FRACOGNAC" in respect of spirits in Class 33. The mark was opposed by the Bureau National Interprofessionnel du Cognac (BNIC) and the Institut National de l'Origine et de la Qualité (INAO).

This is the second time Shenzhen Ying Jun has applied to register the "FRACOGNAC" mark in Class 33. Its previous application was also denied. in both applications the BNIC and INAO argued, and the Trademark Office agreed, that the use of FRA, a common indicator for the French Republic, combined with the geographic indicator Cognac would mislead the public, even if the product were clearly marked with a different origin in Chinese.



Since its introduction on 15 June 2011, the Copyright (Amendment) Bill 2011 (bill) continues to be considered by the hong Kong Bills Committee.

The Bill seeks to ensure that the copyright legal regime in Hong Kong will endure future challenges presented by rapid technological advances. it also aims to promote cooperation between copyright owners and online service providers in the fight against online infringement and to facilitate new modes of uses such as e-learning.

Proposed amendments include granting copyright owners an exclusive right to communicate their works to the public and to introduce criminal sanctions for unauthorised public sharing of copyright work. Of significant controversy is whether there should be special exceptions for parody disseminated on the internet.




Senators Bob Brown and Richard Di Natale introduced the Protecting Children from Junk Food Advertising (Broadcasting and Telecommunications Amendment) Bill 2011 (cth) (bill) into the Senate on 21 November 2011.

The Bill prohibits all broadcasts of unhealthy food advertisements directed at children under the age of 16, and prohibits the commercial broadcast of all unhealthy food advertisements during key times (ie times when a significant number or proportion of children are watching television).

This is the third time Senator Brown has introduced a private senator's Bill on the subject of unhealthy food advertising to children; the previous two attempts have failed. An interesting point of difference between the current Bill and the previous Bills is the prohibition on the promotion of unhealthy food directed at children via social media tools and the internet.

The Bill has gained support from a number of special interest groups, but, at this stage, it continues to lack sufficient political momentum to ensure passage through the legislative assembly.



From 1 January 2012, warranties against defects for consumer goods and services must comply with new australian Consumer Law (ACL) requirements (eg a statement such as a "two-year warranty" would be considered a warranty against defects).

The ACL now requires that documents evidencing a warranty against defects include:

  • What the person giving the warranty must do, and what the consumer must do to activate the warranty
  • The following information:
    • Contact information about the individual or business giving the warranty
    • The period within which the consumer is entitled to claim the warranty
    • Who will bear the expense of claiming the warranty

In addition, the warranty must include mandatory text outlining that it is in addition to the benefits conferred to the consumer under the ACL.

The new requirements may cause difficulties for some suppliers, especially those that manufacture goods in small packages. businesses that do not meet the requirements can face penalties of up to AU$50,000.



On 13 september 2011, the singapore ministry of information, communications and the Arts (MICA) released a public consultation paper outlining the Government's proposed data protection regime (Singapore does not currently have a general privacy or data protection regime, which is covered by a number of other acts and the common law).

MICA has stated that the proposed regime will aim to ensure that consumers' personal data is adequately protected while recognising the need for businesses and other organisations to obtain and process such data for legitimate and reasonable purposes. if the proposed framework is implemented, all organisations in Singapore will be required to comply with minimum standards in relation to the collection, use, disclosure, transfer and security of personal information.

Public consultation on the new framework closed in October 2011 and the Government is expected to introduce legislation to Parliament in early 2012.



South Korea's Communications Standards Commission has announced plans for an eight-member team tasked with reviewing facebook and twitter posts and smartphone apps.

The commission will request users to delete "harmful or illegal" content related to pornography, gambling, drug abuse, false information and defamation, which are considered criminal offences in South Korea. Content that praises North Korea or glorifies north Korean leaders will also be targeted.

If users refuse to remove the material, the commission will call for internet Service Providers to block access to offending accounts and sites.



The Indian Government has asked internet companies and social media sites to prescreen user content from india and to remove disparaging, inflammatory or defamatory content before it goes online.

The demand is the Indian Government's latest attempt to monitor and control electronic information. In April 2011, the Ministry of Telecommunications and Information Technology issued rules requiring Internet Service Providers to delete information posted on websites that officials or private citizens deemed disparaging or harassing.




The Infocomm Development Authority of Singapore (IDA) has fined singaporebased telecom operator MI s$300,000 (US$232,320) after the IDA found that MI had not fulfilled its obligation to provide resilient mobile telephone services after a network disruption in May 2011.

According to the IDA's investigations, the disruption was caused by faulty hardware cards in MI's backend systems. This affected the database used to identify and update the location of MI's subscribers in the western part of Singapore, which caused disruptions to mobile services throughout the area.

MI has since issued a separate press statement stating its disagreement with the IDA's enforcement action and the basis on which the fine was imposed. The press release also stated that MI has taken steps to further enhance its network systems, and that it intends to appeal the IDA's ruling.



The Philippines' National Telecommunications Commission (NTC) is placing pressure on the country's three major telecoms groups for failing to lower their SMS rates, despite a decrease in intercarrier access charges.

A mandated cut to inter-carrier SMS rates by 0.2 pesos (us$0.005) per message took effect 30 november 2011, but this change has apparently not been passed on to consumers of Smart Communications, Globe Telecom and Sun Cellular, who are apparently still being charged the old rate of 1 peso per message.

The reduction in the inter-carrier SMS rate was supposed to result in a reduced rate of 0.8 pesos per message for consumers, but the carriers have argued that the reduction in inter-carrier access charge does not directly translate into savings of the same amount for consumers. The three firms have indicated that they are waiting for SMS rates to be driven down by market forces.



Indonesia's state-owned telecom provider, PT Telkom, has announced that it plans to spend 21.19 trillion rupiah (US$2.3 billion) on a national high-speed broadband network project.

The project aims to provide high-speed coverage to more than 13 million homes in 497 cities nationwide by the end of 2015.

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