Hunter_maynard1

Hunter Valley wine brands and branding

What's good, mediocre, bad or just plain ugly in wine branding in the Lower Hunter Valley? A weekend visit provided an opportunity to assess developments.

With over 120 wineries the Hunter Valley region in New South Wales has huge brand pull. It is the most popular tourist destination outside Sydney. In 2006 it is estimated that 2.3 million tourists visited the region, up from about 1 million in 1996-97 and 1.5 million in 1998-99.

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Fashion_gowings_dept_store

Australian fashion law and industry trends

There's a lot of name dropping in fashion, it makes the money go round in the clothing, footwear, perfume, jewellery and accessories markets. In fashion the name's the thing, it also helps to have good design, talent and images of models who are easy to look at.

This article examines trends and statistics relevant to commercialisation, management and legal practices in the fashion sector in Australia.

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Adwords_bextra

AdWords contract upheld

In recent weeks Google won convincingly in the pay-per-click case of Lawrence Feldman v. Google, Inc. [PDF], 2007 WL 966011 (E.D. Pa. March 29, 2007). Google won against Lawrence Feldman, who was the plaintiff. Mr Feldman is also a lawyer.

As lawyers who draft business contracts, we found this AdWords case worth studying. It helps answer this question under US law- when does an online transaction produce  or amount to an enforceable or legally binding contract?

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Co-operatives

Restructuring co-operatives as a business structure

"Mitre 10 is a brand in deep trouble" writes Neil Shoebridge today. He also wrote that Mitre 10 is a retail co-operative, something I'd forgotten. To clarify, Mitre 10 uses a business co-operative legal structure, not a corporate structure. Hence there is no one corporation owning and controlling all the Mitre 10 retail outlets.

This triggered a hunch in my mind as a business structuring lawyer about  how the co-operative structure of Mitre 10 might be speeding Mitre 10's slide against the rise and rise of the Bunnings Group Ltd retail chain. There are many reasons for Mitre 10's slide relative to Bunnings. In this article I'll focus on its structure.

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Lb_thumb

"Making it under US patent litigation"

US patent lawyer and a partner at Kirkland & Ellis LLP in Chicago, Russell E. Levine, has neatly summarised noteworthy points of difference between US and Australian patent law litigation. His article, "Making it under US patent litigation", appeared in Lawyer's Weekly, a LexisNexis publication in Australia.

 

The headings and paragraphs below are extracts from his article. They are selected to highlight differences between Australian and United States patent litigation.

A jury decides validity In US patent infringement litigation, the issues of infringement and validity of the asserted patent are decided by a jury. [Our comment: In contrast to Australia, jury trials are a feature of US commercial litigation.]

  • Filing to trial can take two years Although it varies from district to district, the time from filing to trial in a typical US patent infringement suit is two years. Approximately one year of this two-year period is spent conducting discovery, which includes document production, written interrogatories and depositions. [Our comment: Heavy discovery costs also exist in Australia.]
  • Some jurisdictions are known as “rocket dockets”. In these jurisdictions a case can go from filing to trial in less than a year. These rocket dockets, such as the Eastern District of Texas, have a high percentage of patent cases as a part of their docket.
  • US patent litigation is expensive The American Intellectual Property Law Association (AIPLA) conducts a bi-annual economic survey that includes an assessment of the total cost of patent litigation. For patent cases in which the amount in dispute exceeded US$25 (A$30) million, the AIPLA survey reported that the average cost in 2001 was US$2.99 9 (A$3.6) million and in 2003 US$3.99 (A$4.8) million and in 2005 was US$4.5 (A$5.4) million. When the 2007 survey is released later this year, the average cost is likely to exceed US$5 (A$6) million. [Our comment: Patent litigation in Australia is also among the leaders in legal costs in commercial litigation in Australia.]
  • The loser doesn’t have to pay US patent litigation is governed by what’s known as the “American Rule”. The American Rule is that attorney fees are not awardable to the winning party (i.e. each litigant must pay his own attorney fees) unless statutorily or contractually authorised. [Our comment: A general rule in commercial litigation in Australia is that a court's decision on who pays legal costs follows its decision on the merits of the case. Hence usually the loser of the case pays both its own legal costs and a substantial portion of the legal costs of the winner. There is a belief in Australia that this discourages litigation. Over the years statistics on the level of litigation in say Sydney don't seem to neatly support this belief.]

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Lb_thumb

"Making it under US patent litigation"

US patent lawyer and a partner at Kirkland & Ellis LLP in Chicago, Russell E. Levine, has neatly summarised noteworthy points of difference between US and Australian patent law litigation. His article, "Making it under US patent litigation", appeared in Lawyer's Weekly, a LexisNexis publication in Australia.

 

The headings and paragraphs below are extracts from his article. They are selected to highlight differences between Australian and United States patent litigation.

A jury decides validity In US patent infringement litigation, the issues of infringement and validity of the asserted patent are decided by a jury. [Our comment: In contrast to Australia, jury trials are a feature of US commercial litigation.]

  • Filing to trial can take two years Although it varies from district to district, the time from filing to trial in a typical US patent infringement suit is two years. Approximately one year of this two-year period is spent conducting discovery, which includes document production, written interrogatories and depositions. [Our comment: Heavy discovery costs also exist in Australia.]
  • Some jurisdictions are known as “rocket dockets”. In these jurisdictions a case can go from filing to trial in less than a year. These rocket dockets, such as the Eastern District of Texas, have a high percentage of patent cases as a part of their docket.
  • US patent litigation is expensive The American Intellectual Property Law Association (AIPLA) conducts a bi-annual economic survey that includes an assessment of the total cost of patent litigation. For patent cases in which the amount in dispute exceeded US$25 (A$30) million, the AIPLA survey reported that the average cost in 2001 was US$2.99 9 (A$3.6) million and in 2003 US$3.99 (A$4.8) million and in 2005 was US$4.5 (A$5.4) million. When the 2007 survey is released later this year, the average cost is likely to exceed US$5 (A$6) million. [Our comment: Patent litigation in Australia is also among the leaders in legal costs in commercial litigation in Australia.]
  • The loser doesn’t have to pay US patent litigation is governed by what’s known as the “American Rule”. The American Rule is that attorney fees are not awardable to the winning party (i.e. each litigant must pay his own attorney fees) unless statutorily or contractually authorised. [Our comment: A general rule in commercial litigation in Australia is that a court's decision on who pays legal costs follows its decision on the merits of the case. Hence usually the loser of the case pays both its own legal costs and a substantial portion of the legal costs of the winner. There is a belief in Australia that this discourages litigation. Over the years statistics on the level of litigation in say Sydney don't seem to neatly support this belief.]

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Engelbarts_mouse

Online advertising click fraud

This post concerns an unresolved US click fraud court case which raises questions such as - What are the  legal obligations to prevent click fraud in pay-per-click online or Internet advertising? There are lessons here for advertisers (ie those who place ads) as well as search engines and others who offer opportunities for pay-per-click online advertising.

Click fraud is an Internet sector term, not a legal term. It involves a human being or a robot computer program (ie bot) repeatedly clicking a hyperlinked pay-per-click advertisement. This results in inflated Internet advertising costs payable by advertisers (ie those who place and pay for the ads) who pay per click.

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Tgyhs

TV format licensing checklist

In a scene from the iconic Aussie film The Castle, if something is precious or highly valued by the protagonist Darryl Kerrigan it goes "straight to the pool room". That said, I'm not sure even Darryl has a room that is worthy of the latest achievement of Working Dog, the production company behind The Castle.

Their latest TV creation "Thank God You're Here" (TYGH) has just taken the honour of being the first Australian TV format to be taken up by a US Network, according to Crikey's Glenn Dyer. The US version of TGYH aired on NBC in America the other day to 8.3 million people, which according to Dyer is only an "OK" result. Given the trend of TV importation flows the other way ad nauseum, here at the Lightbulb we're certainly impressed.

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Tax_cgt_return

Restructure your business to get new capital gains tax concessions

Capital gains tax has an enormous impact on the business and tax structuring of small businesses. Thus it is essential to maintain a close watch over changes to capital gains tax law.

A few changes will come into force from 1 July 2007, noteworthy is the increase in the net asset value test from A$5 million to A$6 million. Some of the changes already effective from 1 July 2006 are discussed in this article.

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Tv_format_biggest_loser

Copyright traps for television formats

The popularity and globalisation of reality television programs has increased the value of television format licensing over the last decade or so.

This was discussed briefly in SMS revenue models and e-marketing legal compliance and is illustrated in the post today, TV format licensing checklist.

For television program developers and networks, this Lightbulb post uses three court case studies to ask under intellectual property law - How can they avoid unlawfully copying existing television formats?

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Lightbulb_logo

Online terms of service or "Cyberspace innkeeping"

We track IT developments to better serve the legal and business needs of our clients.

Sometimes we uncover gems, such as the John Coates article discussed here on regulating online communities.

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Bavaria-beer

"Thirsty folk want beer, not explanations"

Having recently returned from a whirlwind tour of Europe, a trade mark dispute floated across my radar that was very close to my heart. Or rather, my taste buds.  The makers of a beer called “Bavaria” had filed an Australian trade mark application for their label, pictured left. Notwithstanding the name, Bavaria is actually brewed in Holland. And therein lies the problem.

Though initially accepted by the Trade Marks Office, the application was later opposed by an association of Bavarian brewers on the basis that Bavaria is a “geographical indicator” and/or such a label would mislead people into thinking the beer came from Bavaria.

In the decision [PDF] handed down last year, IP Australia’s trade marks delegate Deirdre O’Brien took into consideration the experiences of Australians who travel to the famous German state, as well as similar Bavarian beer halls right here at home.

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Bavaria-beer

"Thirsty folk want beer, not explanations"

Having recently returned from a whirlwind tour of Europe, a trade mark dispute floated across my radar that was very close to my heart. Or rather, my taste buds.  The makers of a beer called “Bavaria” had filed an Australian trade mark application for their label, pictured left. Notwithstanding the name, Bavaria is actually brewed in Holland. And therein lies the problem.

Though initially accepted by the Trade Marks Office, the application was later opposed by an association of Bavarian brewers on the basis that Bavaria is a “geographical indicator” and/or such a label would mislead people into thinking the beer came from Bavaria.

In the decision [PDF] handed down last year, IP Australia’s trade marks delegate Deirdre O’Brien took into consideration the experiences of Australians who travel to the famous German state, as well as similar Bavarian beer halls right here at home.

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Saplogo

Trade secrets "theft on a grand scale"

Legal writing can read like a detective thriller. Here's an example.

On March 2007 Oracle, an American software company, began a court case in which the first paragraph of its Complaint alleges "corporate theft on a grand scale, committed by the largest German software company - a conglomerate known as SAP." You can read below the overview of this thriller and our practical advice. Otherwise go direct to Oracle's 44 page Complaint placed on its website.

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Currency_euro

National and international patent application numbers

Alison Brimelow, President-elect of the European Patent Office, noted recently that there were five million patents in force worldwide in 2004 and that they reached that point at an exponential rate. Her patent statistics provide an international perspective, helping to round out the US-focused Lightbulb post earlier today titled IT companies pile on patents in the US.

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