AGL, Greenpeace and free speech –

AGL, thought-about certainly one of Australia’s largest suppliers {of electrical} vitality, gas and telecommunications, owns copyright in and has registered as a commerce mark its AGL “emblem”:

TM No 1843098

Greenpeace started working a advertising and marketing marketing campaign about AGL’s enterprise “Nonetheless Australia’s Largest Native climate Polluter” which included the web banner:

You presumably can see why that will upset anyone at AGL.

That induced AGL to sue Greenpeace for copyright infringement and commerce mark infringement.

Burley J has largely dismissed the claims.

Burley J held that there was no copyright infringement for makes use of just like the occasion above as they’ve been sincere dealing for capabilities of parody or satire.

One other makes use of, nonetheless, did not make such use of irony, sarcasm or ridicule, or humorous juxtaposition, as to qualify as parody or satire. This seems largely to have turned on the absence of the pointed tag line Australia’s Gretest Liability in an occasion equal to:

A Greenpeace protest poster image

These makes use of moreover did not qualify for the safety of sincere dealing for the wants of consider or criticism. They did not, as an example at [92]“rise above the extent of protest statements which is perhaps necessary of AGL as a company, and would not be understood to characterize criticism of consider, whether or not or not of the AGL emblem or each different work.”

Burley J moreover rejected AGL’s case on commerce mark infringement: Greenpeace was not using the AGL emblem as a commerce mark. At [102]his Honor outlined

The utilization of the modified AGL emblem is to ascertain that mannequin, and the company that it represents, as the subject of criticism. [Consumers]would not perceive Greenpeace to be promoting or associating any gadgets or firms by reference to that mark. Barely, it is utilizing the modified AGL emblem to refer in phrases to AGL and the merchandise and firms that AGL provides: see, as an example, Irvings Yeast-Vite Ltd v Horsenail (1934) 51 RPC 110 at 115 (Lord Tomlin), cited in Shell Agency at 426 (Kitto J).

This, with all due respect, has to be correct. His Honor’s technique, nonetheless, demonstrates with stark readability the difficulty with the reasoning inside the “parallel import” circumstances identical to the Full Courtroom’s (overruled) dedication in E & J Gallo Winery v Lion Nathan Australia Pty Ltd, most not too way back confirmed inside the Scandinavian Tobacco case at [21] – [56] (although one might argue, apart from the Gallo case, the merchandise weren’t in precise truth parallel imports).

AGL Vitality Restricted v Greenpeace Australia Pacific Restricted [2021] FCA 625 (Burley J)

ps AGL might actually really feel doubly aggrieved by this as, once more inside the Eighties, it had effectively sued for copyright on the concept there was no parody safety. It solely took one different (nearly) 20 years, nevertheless the Act did lastly get amended to usher in that revolutionary development.