Reference no: EM133474512

Case: The Spanish Kitchen is a popular Spanish tapas restaurant that has been in operation for a year in Perth. Alice, the owner of The Spanish Kitchen, has decided that they should market The Spanish Kitchen a bit better online and sets up a website for it. She does not have time to get some professional photos taken of their food or the restaurant but is keen to have the website set up as soon as possible. Alice finds some photos from the social media Instagram account of another Spanish restaurant in Melbourne called El Quinto. She likes the look of these photos which are of dishes similar to what The Spanish Kitchen serves. She downloads the photos from El Quinto's Instagram and posts these on the new website of The Spanish Kitchen. Alice also devises a logo for The Spanish Kitchen - she draws up an image of a raging bull and places the words The Spanish Kitchen in stylised font below the image. She aims to use this logo (comprising the raging bull image and stylised words) for all marketing purposes, including on the website and on their shop font. Barry is a kitchenhand who works at The Spanish Kitchen in his spare time. As a kitchenhand, he assists with various tasks in the kitchen e.g., chopping, cleaning, preparation of ingredients etc. He is also a software programming student, and while observing the kitchen operations he finds that the existing online takeaway ordering system used by The Spanish Kitchen could be improved substantially. In his spare time, he writes a whole new software program that collects customer orders, then automates and calculates the start of the cooking time based on how long certain dishes take to finish and the estimated pickup time. The program ensures the workflow in the kitchen aligns with the estimated order pick-up times. In Barry's view the automated workflow system is highly functional as it increases the efficiency of the kitchen operations.

Based on the above scenario, please advise on the following matters and explain the legal basis for your answer, identifying additional information where necessary. Assume that no contracts or agreements exist between the parties. limit your answers to patent, trade mark and copyright law and specify which of these three areas of IP you are discussing. Several areas or only one area might be relevant to a particular question.

Question 1: Is Alice at risk of infringing Intellectual Property (IP) through her use of the photos from El Quinto's Instagram?

Question 2: How can Alice protect the brand reputation of The Spanish Kitchen?

Question 3: Is the automated takeaway ordering program protected under IP law? Who owns that IP?

Must cite cases and legislative provisions for the rules and propositions cited but can do so in abbreviated form in text (e.g., CA s 10(1) for section 10(1) of the Copyright Act 1968 (Cth) or McCormick for McCormick & Co Inc v McCormick [2000] FCA 1335).