Monday, Feb 27, 2006 at 23:34
Hi Truckster & others,
Actually he could be in strife - not could be probably is I would have thought. This
forum post could provide substantial evidence in
ARB's case due to the number of us that picked the similarity.
I picked the similarity as soon as he started advertising here. I thought it was a bit cheeky and it reminded me of a local case where "Lonestar Steakhouse & Saloon" or what ever that now defunct franchise of restaraunts was called took a small business here in town to court for naming a bar Lonestar Saloon. The franchise won.
Interesting read below for those who have picked the similarity. (I've edited out some irrelevant bits but the full sheet can be found with a quick google)
Dave
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Australian Copyright Council Information Sheet G28 Logos: legal protection 3
Infringement
If a logo is protected by copyright, it will usually be an infringement to reproduce it without permission from the copyright owner. If the logo is very simple, there may be no infringement if the logo is not copied exactly.
Generally, however, reproducing part of a work without permission—even a small part—infringes copyright if it is
an important or recognisable part.
Making changes to a logo does not overcome infringement
Note that there is no rule in copyright law that permits reproduction of a logo if a percentage of it is changed, or if a certain number of alterations are made. If you can put the two logos side by side and identify important parts from the original that have been copied, it is likely that an important part of the original has been reproduced.
For example, the "Aussie Home Loans" logo consisting of three rectangles on top of each other, incorporating the three words and topped by a triangle, to represent a house was found to be protected by copyright as an artistic work. Copyright in this work was held to have been infringed by a rival company using a similar logo in which the
word "loans" was replaced by "builders". A number of other changes had been made, including the addition of a chimney and changes to the font, proportions of the triangles and shading, but the court had no difficulty in finding that the overall appearance of the two logos was so similar that infringement had taken place.
For further information on infringement, see our information sheet Infringement: what can I do?
Trade marks
A logo may be protected by copyright and also protected as a trade mark. A person who reproduces the logo without permission may then infringe both copyright and any trade mark rights. The Trade Marks Act 1995 (Cth) provides a formal system of registration for signs such as names, logos and other distinctive aspects of a product or packaging. Unlike copyright, protection under the Trade Marks Act depends on
registration and payment of a fee. Only marks inherently capable of distinguishing the traders’ goods or services can be registered.
Registration provides protection against other individuals or companies using the same or a deceptively similar mark in the course of trade. Trade marks are registered at IP
Australia. IP
Australia has its
head office in
Canberra and sub-offices in each State capital city. It can be contacted at: 1300 651 010 or via its website at www.ipaustralia.gov.au.
If a trade mark has not been registered, a person using it may still have rights against others using it or a similar mark.
“Passing off” & consumer protection laws
A company or business that has an established reputation may be able to take legal action against another person who “cashes in” on that reputation in the market place. For example, a person using a name or logo connected with a product in a way that misrepresents the origin of the product, or suggests an endorsement which has not been given, may be in breach of laws such as “passing off”, the Trade Practices Act 1974 (Cth) or the fair trading laws which operate in the States and Territories.
For further information see www.artslaw.com.au or a private solicitor with expertise in these areas.
Further information
For further information about copyright, see our website: www.copyright.org.au or
contact us.
Information from the Arts Law Centre of
Australia may also be of interest to you: www.artslaw.com.au; phone
(02) 9356 2566.
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