LAWS8024 Intellectual Property Law Assignment

Assignment Help Business Law and Ethics

Reference no: EM133020742 , Length: word count:2000

LAWS8024 Intellectual Property Law - Macquarie University

Question 1: Trademarks

Amelia Kant and her husband Mario Kant who live in Newcastle are great fans of the famous US sitcom ‘the Big Bang Theory'. They have watched all episodes multiple times, have organized several parties with a Big Bang Theory theme, and they have been following all news related to the show. After the Big Bang Theory series finished, Mario and Amelia decided to follow their passion and open a restaurant called ‘the Big Bang'. The restaurant opened on 1 January 2021 with a splendid New Year party attended by more than 100 guests. Since then, the restaurant has become a popular place for the fans of the Big Bang Theory, not only from Newcastle but also from Sydney.

On 1 June 2021 they applied for a trademark ‘the Big Bang' in relation to dining and entertainment services. They had checked the IP Australia database and they found no identical registered trademark in Australia. On 1 October 2021 they received a notice from IP Australia office suggesting that Warner Bros Inc., the producers of the show, have opposed the application and requiring them to reply to it.

Almost simultaneously, on 7th October, they received a cease-and-desist letter from Warner Bros Inc. claiming that they have an established reputation with relation to the sign ‘the Big Bang Theory' and requesting they stop using ‘the Big Bang' as a trade sign.
Amelia and Kant approached you immediately for advice. Please discuss:

1) whether their sign ‘the Big Bang' meets the requirements to be registered as a trademark and whether there are grounds under which the registration could be rejected. Please identify relevant provisions under the Trademarks Act 1995, apply them to the facts of the case, and provide a conclusion.

2) whether Warner Bros Inc. can successfully rely on the passing off doctrine to stop Amelia and Marc from using the sign in relation to their dining services. Please identify the test under the passing off doctrine, reference to the relevant case law in applying the test, and provide a conclusion.

Question 2: Patent law
Although software-based inventions can be patented, there has been a lot of controversy in this area. After conducting independent research, please discuss the following questions:

1) What are the legal problems in acquiring patent protection for software? In particular, which of the patentability requirements might software-based inventions struggle to satisfy? What is this the case?

2) What are the arguments for and against allowing patents over software-based inventions? Do you think that patents over software-based inventions should be allowed or not? Please provide reasons in support of your views.

In your answers, please refer to relevant statutory provisions, engage with case law and secondary legal materials (legal commentary) in the area.

Reference no: EM133020742

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