Intellectual property litigation and protection for shoes

In the stunning National Gallery of Australia (NGA) in Melbourne having just admired three Rembrandts I was still in deep contemplation when I turned the corner and there they were. There were over 150 new and used sneakers exhibited like jewels under lights in two darkened rooms.

There were running shoes, sandshoes, basketball shoes, tennis shoes and sports shoes generally

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7 commercialised IT technologies

Some months ago I reviewed seven commercialised IT technologies. They are Skpe, Flash, SMS, Bluetooth, i-Mode and Windows CE. As an IT lawyer it's essential to understand the functionality, commercialisation and revenue streams of IT technologies.

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Perceptions of value on 42nd Street

The UK office of Deloitte published a media predictions report in January 2007 which contained an observation about consumer perceptions of value.

It's relevant to every business that needs to respond to changing customer perceptions of value and this query by sophisticated customers: "Give me what will deliver value for money!".

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GST planning for outsourcing and offshoring

It is widely accepted that in our present era globalisation of trade and business has dramatically escalated economic development. The developing world is leaping forward towards economic prosperity at a pace not imaged a few years ago.

Growth in the developing countries is taking place at a rate that is about double the rate being achieved in the developed world. In the SMH article, "The shock of the new world economic order", late 2006 statistics from The Economist are used to support the statement: "Developing countries now account not for 20% of gross world product but more than half."

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Ex-employee use of confidential information

Expeditious legal action can be taken in Australia against an ex-employee who uses information that is confidential to the former employer.

Confidential information law, an employee's duty of fidelity and other laws can be used to protect valuable trade secrets.

It greatly strengths the employer's position if there is business documentation and agreements designed ready for such action.

Should you check computer access records when an employee announces he or she is leaving to join a competitor?

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Contract Drafting Tips Series: Service Level Agreement Clause

This article is part of a series on drafting tips for contract clauses.

A service level agreement, or SLA, is a legally enforceable contract, or provision of a contract, between a supplier and a customer that specifies the supplier's obligation as regards the level or quality of service or goods delivered.

Service level agreements differ from conventional services agreements by not only specifying what will be provided by the service provider, but also making the service provider accountable to supply at a particular quality, standard or performance level. Setting a service level is about defining standards and quality - and ultimately price and value.


Different legislation affects different transactions. For example, today the sale of a motor vehicle is regulated by:

  • Motor Dealers Regulation 2004 (NSW) (which imposes a post-purchase cooling off period);
  • Fair Trading Act 1987 (NSW);
  • Sale of Goods Act 1923 (NSW); and
  • Consumer Credit Code.

Understanding precisely what legislation, regulations or other laws are relevant to you specific circumstances is critical in assessing risks and ensuring compliance.

Nowadays service level agreements commonly set out provisions for:

  • service definition;
  • timing standards;
  • minimum and maximum quality needs;
  • compliance with set standards;
  • payment (incentives and rebates);
  • consequences for performance drops;
  • current and future needs;
  • monitoring methods;
  • security of premises and information;
  • alternative dispute resolution; and
  • variation of arrangements.

For suppliers and customers, flexibility for variations is achieved by providing for regular reviews, factors which must trigger costs variations, and compliance with changing market and technical standards and business specific needs, processes and technology.

Further, for customers good service level agreements also include both remedies and penalties for missing set service levels. These penalties need to motivate the vendor to achieve customer objectives. They may set liquidated damages.

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Fox in Socks: A parable for 30 years of IP for IT

 My career as a lawyer has involved an ongoing search for simplicity. This is especially so for the application of intellectual property (IP) law to information technology (IT).

I've looked for frameworks that help explain the rationale for existing IP law for IT. The frameworks also help predict future directions in IP for IT. This helps refine legal strategy for clients.

I feel that if as a lawyer I don't try to simplify then I'm not doing my job properly. This post sets out a framework for the evolution of IP law for IT in the 30 years since about 1977. Along the way I link the story to the dialogue in Fox in Socks by Dr Seuss.


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Grappling with fallacies: music formats and DRM

Few businesses are as challenged currently by the online digital media revolution than the music business.  This is an introductory post on the law, technology, hype and business models for music online. 

Digital and online music is a market moving at warp speed through a cacophony of hype and spin. This post aims to provide a factual foothold for online business and intellectual property strategy decisions. Music's struggle also has lessons for other content licensing businesses which use digital rights management (DRM) systems and need to evolve their online business models.

The music business is at the forefront of change online, as it was with multimedia in the early 1990s. In both eras a key fact is that music's main "delivery platform" (ie CDs) was and is delivering content in a  digital format.

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Business Finance Selection Tool

In Australia a remarkable variety of types or source of business finance is available. This article sets out a short list in a neat table format.

The table includes finance types such as venture capital, shares, equipment leasing, initial public offerings (IPOs), hire purchase, overdrafts and customer pre-payments.

The table is a tool for business planning, business re-structuring, charting a growth strategy and working out the role of collaborators in financing a business (be they family members, staff, shareholders, venture capitalists, bankers, suppliers, customers and even the Government).

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No discounts falls foul of consumer law

This month the Australian Federal Court imposed a fine of $3.4 million, plus legal costs, against four Jurlique companies. It also imposed a fine of $200,000 personally on Dr Jurgen Klein, the Managing Director until 2003 of Jurlique International.

Judge Spender found four Jurlique companies guilty of contraventions over many years of section 48 of the Trade Practices Act 1974 (Cth) in relation to resale price maintenance of skin care, cosmetic and herbal medicine products. He also found a contravention of section 45 in relation to price fixing of skin and body treatment services. The case is Australian Competition and Consumer Commission v Jurlique International Pty Ltd [2007] FCA 79.

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15 Australian venture finance success stories

Start-up ventures typically attract investors in several finance rounds or liquidity events. To illustrate, the table in this article tracks 15 Australian companies that raised venture finance. They include Seek, JB Hifi, Austal, Vision Group and Mincom.

These companies received funding during 1999-2006, a period covered by a survey assessed by PriceWaterhouseCoopers and AVCAL in their 30 page report titled Economic Impact of Private Equity and Venture Capital in Australia 2006.

The table illustrates the use of business finance, equity investment, ASX floats and government grants to achieve in Australia and abroad.

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IP law and IP strategy in business [slide show]

How does IP law and IP strategy help business? A major study in Europe helps answer this question and looks inside corporate IP strategy and tactics in Europe.

View the slide show below which drawn from that study titled The value of knowledge: European firms and the intellectual property challenge

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Music business entrepreneurship: eulogy for James Brown

James Brown (1933-2006) was an expert in artistic fusion. He was also an innovative deal maker exploiting his opportunities and intellectual property (IP) portfolio comprising a catalogue of songs and recordings. In one deal alone in June 1999 he earned about US$26 million. In the accompanying photo you see him signing the contract with David Pullman. This is the story of how he got there.

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Australian advertising revenue is draining overseas

Last week Google launched Google Maps Australia. This puts the Yellow Pages asset and the revenue stream of Telstra's Sensis right into Google's firing line. This is especially so because with Google Maps you can not only locate product and service retailers and their contact details, but also get driving directions to them and mobile access to that data.

For now Yelllow Pages  has a greater depth of data. Business data for Google Maps is supplied by News Ltd’s What's going on?

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Non-residents - no capital gains tax on sale of shares

The Federal Treasurer's press release of May 2005 echoed the Government's strategic thinking to make Australia a hub for investment in the Asia Pacific. It was announced that the proposed removal of capital gains tax on sale of shares in Australian companies held by non-residents was to:

"further enhance Australia's status as an attractive place for business and investment by addressing the deterrent effect for foreign investors of Australia's current broad foreign resident capital gains tax base."

The proposal has now become law in the Tax Law Amendment (2006 Measures No.4) Act 2006.

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