In one of the first judgments to interpret the High Court of Australia’s recent decision in Self Care, Hungry Jack’s BIG JACK was found not to infringe McDonald’s BIG MAC trade mark. However, the claim that the Big Jack had “25% more Aussie beef” than the Big Mac was found to be misleading or deceptive, emphasising … Read more

In May 2023 we reported on the IP infringement decision of the Californian District Court, in relation to the dispute between the creators of the Bored Aped Yacht Club (BAYC) non-fungible token (NFT) collection, Yuga Labs, and the 'artists' Ryder Ripps and Jeremy Cahen.  In that decision, the Court found against the defendants and, on 25 October 2023, the order for damages was handed down.  This blog post looks at the recent damages decisions and its implications.  (For a refresher on NFTs, you can consult our series here.) As background, the defendants created an NFT collection called the Ryder Ripps BAYC (RR BAYC) collection, which essentially copied the iconic ape images from the Yuga Labs' BAYC collection.  The defendants' alleged that this was for the purposes of commentary on Yuga Labs and the BAYC NFTs.  The Court found against the defendants on the claims of false designation of origin and cyber-squatting (in relation to certain domain names used by the defendants).  It also dismissed the defendants' First Amendment / Rogers defence because no artistic expression was at issue, finding that "As Yuga has pointed out, and the Court agrees, Defendants’ sale of RR/BAYC NFTs is no more artistic than the sale of a counterfeit handbag". Read more

In this cross-over episode with Talking Shop: A Consumer Sector Podcast Series, Emma Iles and Eliza Foley join Aoife Xuereb to discuss trade marks, certification marks and greenwashing risks in Australia. The use of trade marks and certification marks, like the Heart Foundation ‘tick’, by consumer companies to distinguish their product from competitors is not new. There is however an increasing array of certification marks being used to indicate to consumers that a product, its packaging or manufacturing method meets a certain sustainability performance standard, from the well established ‘FAIR TRADE’ mark to increasingly, carbon neutrality status and recyclability. Read more

The US District Judge has now handed down its opinion and order (23 June 2023) on a number of post-trial motions sought by the parties in the "MetaBirkin" case and these provide some interesting insights into how courts may approach the question of remedies in non-fungible tokens (NFT) related cases. The motions for additional remedies (including the transfer of social media accounts and domain names, as well as the transfer of the NFTs and accounting for further income received via the NFTs) followed the Manhattan jury's decision in February 2023 to award Hermès US$133,000 in damages. Read more

In a significant decision for NFT content owners worldwide, the producers of the Bored Aped Yacht Club NFT collection, Yuga, have successfully used unregistered trade mark rights and claims of false designation of origin under the US Lanham Act  (as well as domain name squatting claims) to obtain a summary judgment against individual defendants who had created an NFT collection pointing to, that is, reusing, Yuga's Bored Ape Yacht Club images. Read more about these decisions and NFTs in general in our series The IP in NFTs. Read more