Intellectual property infringement is becoming an increasing risk to organisations. When assessing that risk, organisations should consider the protections under the Copyright Act and Trade Mark Act and the limitations of those protections.
A recent Federal Court of Australia Case exposed such limitations. This case found that charity organisation, Greenpeace's use of energy company, AGL's registered trade mark in an environmental campaign did not constitute copyright infringement and/or trade mark infringement.
The purpose of Greenpeace's environmental campaign against AGL arose from Greenpeace's concern that AGL had successfully persuaded consumers in Australia that it is an environmentally responsible energy provider, a claim which Greenpeace challenged.
Greenpeace subsequently commissioned a report which found that AGL claims it is the "biggest ASX-listed investor in renewable energy" when Greenpeace's research showed that AGL continues to operate coal fired power stations and intends to keep operating those power stations until 2048.
On 5 May 2021, Greenpeace launched a media campaign against AGL in an effort to educate consumers about, what Greenpeace considered to be, ALG's poor environmental practices.
The media campaign included the following categories of publications:
- online banner advertisements
- parody website
- social media posts on Instagram, Facebook, LinkedIn and Twitter
- street posts
- mockup street posters
- a protest poster image.
The publications included a modified version of AGL's logo, which is a registered trade mark.
An example of an online banner can be seen below:
Source of image: AGL Energy Limited v Greenpeace Australia Pacific Limited  FCA 625
AGL argued that Greenpeace infringed its copyright
The copyright work in issue was AGL's logo.
Greenpeace relied on two defences, known as the "fair dealing" defences under sections 41 and 41A of the Copyright Act 1968 (Cth) (Copyright Act).
Section 41 allows a fair dealing with (amongst other things) artistic work or an adaptation to be used if it is for criticism or review.
Section 42 allows a fair dealing with (amongst other things) artistic work or an adaption to be used for parody or satire. This means that a party may use artistic work "to expose, denounce or deride vice", often in the context of a humorous or ridiculous juxtaposition.
A fair dealing refers to (among other things) the true purpose (that is, the good faith, the intention and the genuineness) of the critical work as opposed to attempting to profit unfairly from another party's work.
AGL argued that Greenpeace infringed its trade mark when it used a modified version
AGL contended that Greenpeace infringed its trade mark in the AGL logo and contravened the Trade Marks Act 1995 (Cth) (Trade Marks Act) by using a modified version of the AGL logo in online banner advertisements and street posters.
AGL argued that Greenpeace's use of the modified logo fell within the scope of classes in which AGL's trade mark was registered, specifically educational services and scientific services.
Greenpeace denied infringing AGL's trade mark on the basis that:
- it had not used the modified AGL logo as a trade mark, and its use did not fall within the scope of which the trade mark was registered (education services and scientific services)
- the modified AGL logo was not substantially identical with the AGL logo trade mark
- Greenpeace is a charity, and its use of the modified AGL logo did not amount to use in the course of trade.
The Court's decision
The Court held that:
- copyright infringement claims: Greenpeace's use of AGL's modified logo fell within the second defence – "parody or satire", with the exception of some social media posts and some photographs of placards. Injunctive relief was granted in respect of those uses
- trade mark infringement claims: Greenpeace had not infringed on AGL's registered trade mark.
The Court's key comments regarding the copyright infringement case
The Court found (amongst other things):
- the modified AGL logo was immediately juxtaposed by a play on AGL's initials with the parodic or satirical words "Australia's Great Liability", accompanied by words decrying AGL's environmental practices, such as "Still Australia's Biggest Climate Polluter" or "Generating Pollution for Generations"
- many consumers would see the uses of the AGL's modified logo as darkly humorous because the combined effect is ridiculous
- a reasonable person reading the message would understand that the company being criticised as "Australia's Great Liability" is not the author of the message
- the reader would understand that the message came from Greenpeace.
The Court's key comments regarding the trade mark infringement case
The Court said that (among other things):
- Greenpeace's use of the modified AGL logo was to identify the AGL brand, and the company that AGL represents, as the subject of criticism
- consumers would not perceive Greenpeace to be promoting or associating any goods or services by reference to the modified AGL logo
- Greenpeace used the AGL logo to refer to AGL and the goods and services that AGL provides.
Key takeaways for your organisation
- Copyright and trade mark infringement is a major threat to organisations. With the widespread sharing of an organisation's intellectual property on the internet and social media platforms such as Facebook, Instagram and YouTube, it is now harder than ever for organisations to protect their intellectual property.
- It is important to register your trade marks to protect logos and designs from unauthorised use, notwithstanding the decision in this case.
- When assessing the risk of intellectual property infringement in your organisation, it is important to bear in mind the various defences a party may rely upon when using another organisation's intellectual property, including where the purpose is for "parody" or "satire", as the Court found to be the case in this instance.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.