AGL, Greenpeace and free speech –

AGL, considered one of Australia’s largest suppliers of electrical energy, fuel and telecommunications, owns copyright in and has registered as a commerce mark its AGL “brand”:

TM No 1843098

Greenpeace began working a marketing campaign about AGL’s enterprise “Nonetheless Australia’s Greatest Local weather Polluter” which included the net banner:

You possibly can see why which may upset somebody at AGL.

That precipitated AGL to sue Greenpeace for copyright infringement and commerce mark infringement.

Burley J has largely dismissed the claims.

Burley J held that there was no copyright infringement for makes use of like the instance above as they had been truthful dealing for functions of parody or satire.

Another makes use of, nonetheless, didn’t make such use of irony, sarcasm or ridicule, or humorous juxtaposition, as to qualify as parody or satire. This appears largely to have turned on the absence of the pointed tag line Australia’s Gretest Liability in an instance corresponding to:

A Greenpeace protest poster picture

These makes use of additionally didn’t qualify for the protection of truthful dealing for the needs of evaluate or criticism. They didn’t, for instance at [92]“rise above the extent of protest statements which are vital of AGL as an organization, and wouldn’t be understood to symbolize criticism of evaluate, whether or not of the AGL brand or another work.”

Burley J additionally rejected AGL’s case on commerce mark infringement: Greenpeace was not utilizing the AGL brand as a commerce mark. At [102]his Honor defined

The usage of the modified AGL brand is to establish that model, and the corporate that it represents, as the topic of criticism. [Consumers]wouldn’t understand Greenpeace to be selling or associating any items or providers by reference to that mark. Quite, it’s using the modified AGL brand to refer in phrases to AGL and the products and providers that AGL offers: see, for instance, Irvings Yeast-Vite Ltd v Horsenail (1934) 51 RPC 110 at 115 (Lord Tomlin), cited in Shell Firm at 426 (Kitto J).

This, with all due respect, has to be proper. His Honor’s method, nonetheless, demonstrates with stark readability the issue with the reasoning within the “parallel import” circumstances just like the Full Courtroom’s (overruled) determination in E & J Gallo Vineyard v Lion Nathan Australia Pty Ltd, most not too long ago confirmed within the Scandinavian Tobacco case at [21] – [56] (though one might argue, other than the Gallo case, the products weren’t actually parallel imports).

AGL Power Restricted v Greenpeace Australia Pacific Restricted [2021] FCA 625 (Burley J)

ps AGL would possibly really feel doubly aggrieved by this as, again within the Eighties, it had efficiently sued for copyright on the idea that there was no parody protection. It solely took one other (virtually) 20 years, however the Act did lastly get amended to usher in that revolutionary improvement.

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