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BSL203-Marketing and Advertising Law

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Question 1

Danco Ltd sells software to the food production industry. Smith was employed by Danco but left Danco and commenced employment with a competitor. Before he left Danco, he copied lists containing details of the version of Danco software each customer was using. 

Is the information contained in the lists confidential or employee know-how of Smith? 

Question 2

A children's book was produced featuring fictitious characters called ‘Wombles’ who were primarily engaged in the collection of rubbish from the Wimbledon Common. The ‘Wombles of Wimbledon Common’ book became very successful and well known in the community. The owner of the copyright in the book was a company, Wombles Ltd, who also registered the word ‘Wombles’ as a trade mark for use on toys and clothing. The defendant was in the business of rubbish disposal. It registered the name ‘Wombles Skips’ (skips being large rubbish containers) as a company name and commenced trading under that name. 

Advise the plaintiff, who plans to bring an action alleging: 

(a) passing off; and 

(b) breach of s 18 of the Australian Consumer Law 

Question 3

A large retailer, Byers Pty Ltd, manufactures its own toffees, as well as selling a leading brand of toffees sold under the brand name of ‘Quality Road’ (a registered trade mark). On its own tins of toffee Byers Pty Ltd puts a label, which says: 

‘These toffees are superior to Quality Road.’ 

Has Byers Pty Ltd infringed the ‘Quality Road’ trade mark? 

Question 4 

Chill-Out Pty Ltd is a producer of insulated drink carriers (coolers). In its promotional material it describes its product as a ‘Chill-Out esky’. Nylex Pty Ltd is the owner of the registered trade mark ‘Esky’ for coolers. What action is available to Nylex Pty Ltd to prevent Chill-Out Pty Ltd from using the word ‘esky’ and what defences, if any, are available to Chill-Out Pty Ltd?

Question 5

James and Jane, owners of a music shop in Perth, are very pleased to hear that a well-known and respected WA ladies choir, “The Golden Girls” is going to be singing a selection of songs from their published album entitled: The Old Golden Days. The choir will be performing at the studios of a local radio station, KG2 who will be recording and broadcasting the songs. The words of the songs are written by one of the choir members, Doris Jones and the music is composed by the musician Harold Harvey, who also happens to be the conductor of the choir. At the appropriate time, James and Jane tune in to the radio station and listen happily to the performance whilst also recording it so that they can listen to it again later at a time convenient to them. 

The next day, they take the sound recording to their shop and play it as background music, hoping that the enjoyment that their customers get while listening to it while they shop, will mean that they are relaxed and happy, being in the best frame of mind to purchase more things! That evening, Jane, who also sings in a local choir, takes the recording to her own choir practice, where she plays the songs to her fellow choir members and they discuss the different harmonising techniques and musical styles used. 

Quite coincidently, the musician Harold Harvey lives next door to a good friend of Jane’s who has told her that she can hear him practising his violin. Jane excitedly goes over to her friend’s house and is thrilled to overhear him playing a beautiful piece composed by Beethoven. She records him secretly, and then plays the recording as background music in her shop as well. 

With respect to Australian Copyright Law, identify and discuss the various rights that the various people have, advising whether any of these rights have been infringed. 

BSL203-Marketing and Advertising Law

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