Toyota Motor Corporation Australia Limited: Acted for Toyota in a variety of intellectual property and marketing related matters including drafting and negotiating all of Toyota's significant sponsorship agreements - such as the sponsorship of the AFL, 2006 Melbourne Commonwealth Games, Collingwood Football Club (Lexus) and the AFL Ambassadors.
The Seven Network: Acted for Seven in relation to IP issues including in relation to its television and Internet rights to various sporting events such as the Olympic Games.
Copyright
Sharman Networks: Clayton Utz acted for Sharman Networks (and others) in a dispute with the Australasian Mechanical Copyright Owners' Society, the Australasian Performing Right Association and their global affiliates (as representatives of music publishers), concerning allegations of infringement of copyright in musical works arising out of the distribution and use of the KaZaA peer-to-peer file sharing software. The dispute ultimately settled.
We were also recently involved in a court application by Merlin, acting on behalf of independent record labels, to access the court file from the landmark KaZaA litigation between Sharman (and others) and the major record companies concerning copyright in sound recordings. Merlin is seeking access to the court file as part of an attempt to claim damages on behalf of its members for alleged past infringements.
We also acted in the KaZaA litigation, which settled in 2006. This was part of a global dispute and was a follow on from the KaZaA litigation. The matter raised important issues in terms of the liability of the developers and distributors of online technology, where such technology affects the rights of copyright owners.
Free TV Australia Ltd: Clayton Utz is acting for Free TV Australia Ltd (which represents Australia's commercial free-to-air television broadcasters) in Copyright Tribunal of Australia proceedings commenced by the Phonographic Performance Co of Australia Ltd (PPCA), the collecting society representing the interests of record labels (including the majors) and Australian recording artists. The proceedings relate to a licensing scheme for the television broadcast of commercial sound recordings in Australia.
Subject to certain exceptions, in Australia a licence is required from the record labels where their sound recordings are included in sound-tracks of films or other TV programs that are broadcast. PPCA purports to administer licences for such activities on behalf of licensors. PPCA has referred the scheme to the Copyright Tribunal to determine, amongst other things, the licence fees it will seek from Australia's commercial free-to-air television broadcasters for the broadcast of commercial sound recordings within its repertoire. It will be the first determination of such a scheme by the Copyright Tribunal.
ThoroughVisioN Pty Ltd: Acted for ThoroughVisioN Pty Ltd and various companies in their case against Sky Channel Pty Ltd alleging that Sky Channel Pty Ltd's unauthorised taking and use of extracts from coverage of various race meetings amounts to an infringement of copyright in their respective films and television broadcasts and also misleading or deceptive conduct.
Warner Music Australia Limited & Ors vs Swiftel Communications Pty Limited & Ors: We represented two Australian broadband internet service providers (ISPs), a related body corporate, and their parent company, in copyright infringement litigation by the Australian subsidiaries of the world's four major record companies. At the heart of the case were two peer-to-peer file sharing technologies used by a small number of one of the ISP's customers - Bit Torrent and Direct Connect. This is the first case in Australia brought solely against an ISP concerning secondary liability for copyright infringement based on the actions of customers that use these peer-to-peer file sharing technologies. It was the first case anywhere in the world to deal with "BitTorrent" technology. It was also the first brought against an ISP since the new Part V Division 2AA of the Copyright Act came into effect at the beginning of 2005 which provides a safe harbour scheme similar to that introduced into US law by the US Digital Millennium Copyright Act, under which the remedies available against an ISP if found liable for copyright infringement are severely limited.
Confidential information
Minova Australia (Part of the Orica Group of Companies): Acted in breach of contract, breach of Corporations Law, misuse of confidential information and breach of copyright proceedings for Minova/ Orica against ex senior employees of a subsidiary, Ground Consolidation Pty Limited. Ground Consolidation carries out secondary support work and polyurethane resin injection work in underground coal mines throughout NSW and Queensland. The proceedings were commenced by way of a successful ex parte application for civil search and seizure orders (executed at the homes of 3 former employees).
Patent litigation
Weatherford International Inc: We are acting for Weatherford and Johnson Screens in patent infringement proceedings against Screenex Australia Pty Ltd. Validity of the patent is in dispute. It is part of a dispute in the United States and Australia involving critical technology in the mining industry. The matter also involves allegations of invalidity, including an issue about the breadth of the claims for divisional applications.
Eli Lilly & Company: We are currently acting for Eli Lilly in connection with patent infringement and revocation proceedings for its gemcitabine hydrochloride molecule which forms the basis of its successful anti-cancer treatment branded as GEMZAR. Generic pharmaceutical companies are looking to introduce competing products which Eli Lilly asserts contravene its exclusive patent rights. Proceedings are currently before the Federal Court of Australia, and follows the commencement of similar proceedings in other jurisdictions around the world.This was the first decision dealing directly with the complex interplay of patent rights and the PBS listing procedures.
Major global pharmaceutical company: Advised our client on the appropriate patents to be referenced under the new Pharmaceutical Benefits Scheme Reforms. This matter was significant because the new reforms mandate price reductions for certain major pharmaceutical products by reference to remaining patent life
There was disagreement as to which patents should be referenced and our team managed to convince the Government that it had chosen the incorrect patent. It also generated substantial benefits in excess of US $200 million to our client over ten years.
Northern Territory Government: Successfully defended the Northern Territory Government in the High Court in patent litigation against Collins in relation to the production of essential oils from trees removed from Crown land pursuant to statutory licences. In October 2008, after nearly three years of legal proceedings, the High Court agreed with our arguments that the timber supplied by the Territory was a staple commercial product and accordingly did not constitute a patent infringement.
Designs Act
Redberry Enterprises: We successfully acted for Redberry Enterprises Pty Ltd in proceedings commenced in the Federal Court by Review Australia Pty Limited. Review is a designer and retailer of women’s clothing. Review alleged that Redberry infringed its registered design for a ladies' dress. In October 2008 the Federal Court found in our client's favour, and delivered the first judicial decisions on infringement under the Designs Act 2003 (Cth), a decision which has clarified and strengthened the position of owners of registered designs.
