In a decision made last week, the Federal Court has found that the convergence between computer products and consumer electronics products makes it difficult to draw fine lines between the categories. Pioneer Computers Australia Pty Ltd v Pioneer KK  FCA 134 involved a dispute between an computer manufacturer established in the mid 1990s and an audio equipment manufacturer established in the 1970s.
In an effort to prevent others from using variations on the "Pod" theme for naming portable music and video players, Apple filed an application for a trade mark for "POD" in 2004. In January the trade marks office rejected the application against the opposition of a music electronics vendor called "Line 6", which makes a line of products caled "POD" and has had a registered trade mark since 1999.
Software vendors have a variety of attitudes to open source libraries. Some will use open source libraries without looking at the terms of the open source licence, and some will not use any for fear that the open source library will contaminate their own intellectual property. Rarely a software company will evaluate software licences for individual libraries to determine whether they can, and are prepared to, meet the requirements for using the library.
A law suit launched against iiNet in November by a horde of movie industry plaintiffs seeks to make iiNet liable for breaches of copyright by their subscribers. The alleged liability is based a provision of the Copyright Act 1968 (Cth) that makes it a breach of copyright to authorise another person to do something that is a breach of copyright.
A recent decision of the Federal Court creates a significant challenge for e-commerce businesses selecting a trade mark. In Bing! Software Pty Ltd v Bing Technologies Pty Limited (No 1)  FCA 1760, the court held that the trade marks were deceptively similar, even though the businesses were completely different, because:
- the plaintiff and defendant had similar sounding trade marks;
- their businesses both involved the use of computers;
- there was evidence of some people actually having been confused; and
- an expert witness gave evidence that the trade marks were likely to create confusion.
Drafting contracts without legal assistance, or with the wrong legal assistance, may lead to disaster down the track. Many professionals (and this extends outside the legal and information technology fields) believe they can save money by drafting their own contracts. Almost invariably these contracts do not say what the professional meant to say, and miss important aspects of the transaction. The result can be one or more legal disputes later on that cost far more than the cost of getting the contract right in the first place.
Shrink-wrap and click-wrap software licences often contain what appears to be a binding contract, but if they are not drafted carefully they may be worthless.
To form a contract, the shrink-wrap or click-wrap software licence needs to be accepted by the user. There are two ways for somebody to accept a contract:
- By the offeree communicating back to the offeror that they accept; or
- By the offeree doing something specified in the contract, with the intention of accepting the contract.
Most people in the computing and information technology industries have heard a joke that goes as follows:
Q: What is the difference between a used car salesman and a computer salesman?
A: The used car salesman knows when he's lying.
This problem is even greater in the software industry