Intellectual Property, Technology and Media Newsletter – January 2020

24 January 2020

Welcome to our Newsletter, bringing you the latest in Intellectual Property, Technology and Media Law news.

Further proposed amendments to Intellectual Property legislation introduced to Parliament

On 25 July 2019 the Intellectual Property Laws Amendment (Productivity Commission Response Part 2 And Other Measures) Bill 2019 (Bill) was introduced to Parliament via the Senate.

The Bill is similar, although not identical, to the exposure draft of the Bill released by IP Australia, the subject of our publication dated 1 November 2018.

The Bill proposes changes to the Patents Act 1990 (Cth), the Designs Act 2003 (Cth) and the Trade Marks Act 1995 (Cth).

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Canada’s new harmonised trade mark regime

The new trade mark regime which came into effect on 17 June 2019, brings Canadian trade mark law into alignment with the Singapore Treaty, the Madrid Protocol and the Nice Agreement.

As a result of Canada joining the Singapore Treaty, the Madrid Protocol and the Nice Agreement, Australian businesses selling goods and/or services in Canada can now obtain trade mark protection more cost effectively.

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Introduction of .au second level domain names

In 2016, the governing body of .au domain names, the .au Domain Administration (auDA), initially approved the use of second level domain names in the .au domain namespace, also known as ‘direct registration’. Earlier in 2019, auDA confirmed it would proceed and second level .au domain names were expected to be available for registration from Q4 2019. A recent announcement from auDA advised that this will be delayed again for further public consultation, and is now likely to occur in the first half of 2020.

Notwithstanding this delay, brand owners and current domain name registrants should look into taking action to secure any relevant .au domain names, and take any necessary steps to prepare for the introduction of direct registration.

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Is the Wayback Machine a legitimate source of legal evidence in Australia?

The admissibility of archived webpage printouts from the “Wayback Machine” website was recently tested by the Federal Court of Australia, providing a useful reminder for businesses to be diligent in keeping internal records of their websites to support their intellectual property rights, rather than relying on external archives.

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To Brie or not to Brie: EU’s push for protections over food and spirit names in Australia

Recent developments in the negotiations over the proposed Australia-European Union Free Trade Agreement have potentially wide-ranging implications for businesses operating in the food, agricultural and alcohol industries in Australia.

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Fair Work decision highlights Privacy Act obligations for employers

A Full Bench of the Fair Work Commission (Full Commission) has recently handed down a decision which potentially carries some interesting implications in privacy and employment law.

Mr Jeremy Lee was dismissed by his employer Superior Wood Pty Ltd (Superior Wood) after he refused to comply with a direction to provide his fingerprints. In Jeremy Lee v Superior Wood Pty Ltd [2019] FWCFB 2946, the Full Commission found that this dismissal was unfair, because Mr Lee was entitled to decline to provide his consent to the collection of his fingerprints under the Privacy Act 1988 (Cth), even as an employee, and that the direction issued by Superior Wood was accordingly not lawful.

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New privacy legislation proposed for the WA public sector

The Privacy Act 1988 (Cth) sets out the manner in which personal information may be handled by Commonwealth Government agencies and many private organisations, but specifically does not address these matters for State Government agencies.

The States are instead left to regulate use of their own public services, and most jurisdictions have adopted rules of some kind around how their agencies will deal with personal information. Currently, Western Australia and South Australia are the only two jurisdictions in Australia which do not have specific privacy legislation, though there are privacy-specific administrative instructions in South Australia.

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Counting Steps or Saving Lives: Is your software a medical device?

With the increased prevalence of software aimed at improving our day to day health, diagnosing illnesses and treating medical conditions, there has been a recent focus on developing regulations to address new types of medical devices.

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Industry focus: Legal considerations for medical technology businesses

Advances in computing technology have paved the way for significant changes within the medical technology sector. Medtech businesses are now developing medical devices and technologies that are no longer limited to being the traditional aid for a physician, and now include enhanced and more responsive functionalities which allow them to have a more involved role in health and patient care.

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Industry focus: Airports and the potential dangers of facial recognition technologies

With rapid improvements in technologies for digital facial recognition, movement tracking and sensing, a passenger will soon be able to walk through the doors of an airport and onto a flight with barely a pause. Technologies of this nature rely on high volume collection, processing and sharing of information about passengers, much of which is classed as sensitive in Australia under the Privacy Act 1988 (Cth).

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