Intellectual Property Law In Australia Essay

2747 words - 11 pages

Case study outlining the following:* Copyright law in Australia* Legislative requirements for registering Trademark* Tort of Passing Off* Trade Practices Act: Misleading and deceptive conduct* Registration under the Designs ActIn order to advise Mondo Designs on whether their intellectual property rights are recognised in Australia it is essential to identify prima facie their intellectual property seeking protection. Namely Mondo are concerned with the protection of their computer software Mondo 2000, their fabric and jewellery. Mondo is seeking protection of the following subject matter pursuant to the Copyright Act 1968 Cth:(a)The reverse engineering and adaptation of the computer ...view middle of the document...

It is assumed that Andy has used his own labour, skill, experience and judgement during the course of his employment with Mondo Designs. Effectively the employer has ownership in the copyright of the subject matter, giving ownership of the copyright in the computer software to the company for fifty years past the death of the last remaining partner .There have been arguments that the decision in Data Access Corporation v. Powerflex Services Pty Ltd has left the copyright provisions regarding computer software to be applied too widely and therefore does not allow for adequate protection of reverse engineering rights. According to this case, Dina must have reproduced or adapted Mondo Design's computer software in order to have infringed their copyright interests. A substantial part of the 'set of instructions' that is Mondo 2000 is required to prove that there has been an infringement, as tested in Ludlow Music Inc v Williams . Section 47D of the amended Copyright Act allows a person to reverse engineer duplicates of a program providing that they intend to make a product that interoperates with that program, and not merely a substitute (Connectix Case ). There are quite apparent similarities in the Dina's program and the Mondo's computer program in that they are both designed to create futuristic designs, it could be argued that Dina's program is merely a substitute. However, the practical difference between the programs can be seen in the types of items being designed, namely home wares, fabric and jewellery, the significance of this is that the 'expression of the set of instructions' used by Dina has been adapted and does not breach an copyright interests Mondo Designs have in Mondo 2000.The manner in which Dina used the reverse engineering and adaptation was specifically intended to mimic the computer software; the only difference was in the resulting product. The Full Court in Data Access Corporation v. Powerflex Services Pty Ltd conveyed the opinion that a translation from one language to another is required to establish a breach of a copyright interest. It is assumed from the facts that Dina has not expressed the computer program in her original language, rather she has merely copied the computer software and not created a "version of the original program".Mondo Designs may enter into commercial rental arrangement in respect of the program and to have the exclusive right to make an adaptation of the work . Mondo Designs may seek an injunction, damages and or an account of profits based on the belief that Dina has infringed their intellectual property right in the computer software. An injunction may be sought to ensure that Dina ceases selling or making further products that use the computer program, and for reimbursement of the profits that Dina has made from previous sales, but it will be important for Mondo Designs to establish that Diva was aware that a copyright existed .(b) THE IMITATION OF THE LOOK AND FEEL OF THE FABRICS AND THE...

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