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Intellectual property infringement is becoming an increasing risk for organizations. When assessing this risk, organizations should consider the protections under the Copyright Act and Trademark Act and the limits of those protections.
A recent case from the Federal Court of Australia set out these limitations. This case concluded that the charity, Greenpeace’s use of an energy company, AGL’s trademark in an environmental campaign did not constitute copyright infringement and/or a violation of the Brand.
The Greenpeace campaign
The aim of Greenpeace’s environmental campaign against AGL grew out of Greenpeace’s concern that AGL had succeeded in persuading Australian consumers that it was an environmentally friendly energy supplier, a claim that Greenpeace disputed.
Greenpeace then commissioned a report which found that AGL claims to be the “largest ASX-listed investor in renewable energy” when Greenpeace research showed that AGL continues to operate coal-fired power plants and has intends to continue to operate these power plants until 2048.
On May 5, 2021, Greenpeace launched a media campaign against AGL in an effort to educate consumers about what Greenpeace considered to be ALG’s poor environmental practices.
The media campaign included the following post categories:
- online banner ads
- parody site
- social media posts on Instagram, Facebook, LinkedIn and Twitter
- street poles
- street model posters
- a protest poster image.
The posts included a modified version of the AGL logo, which is a registered trademark.
An example of an online banner can be seen below:
Image source: AGL Energy Limited v Greenpeace Australia Pacific Limited  CIF 625
AGL argued that Greenpeace violated its copyright
The copyrighted work at issue was the AGL logo.
Greenpeace has relied on two defenses, known as the “fair use” defenses under sections 41 and 41A of the Copyright Act 1968 (Cth) (copyright law).
Section 41 permits fair dealing (among other things) of an artistic work or adaptation for the purposes of criticism or revision.
Section 42 permits fair dealing (among other things) of an artistic work or adaptation for the purposes of parody or satire. This means that a party may use an artistic work “to expose, denounce or deride the vice”, often in a humorous or ridiculous juxtaposition.
Fair use refers (among other things) to the true purpose (i.e. good faith, intent and authenticity) of the critical work as opposed to attempting to take unfair advantage of the work of a other part.
AGL argued that Greenpeace infringed its trademark by using an altered version
AGL argued that Greenpeace infringed its mark in the AGL logo and contravened the Trade Marks Act 1995 (Cth) (Trademark Law) using a modified version of the AGL logo in online banner ads and street posters.
AGL argued that Greenpeace’s use of the modified logo fell within the scope of the classes in which AGL’s trademark was registered, specifically educational services and scientific services.
Greenpeace denied infringing AGL’s trademark on the grounds that:
- it had not used the modified AGL logo as a trademark, and its use did not fall within the scope of the registered trademark (education services and scientific services)
- the modified AGL logo was not substantially identical to the AGL logo trademark
- Greenpeace is a charity, and its use of the modified AGL logo did not constitute use in business life.
The Court’s decision
The Court held that:
- Claims of copyright infringement: Greenpeace’s use of the modified AGL logo fell under the second defense – “parody or satire”, except for certain social media posts and some photographs of signs. An injunction has been granted with respect to these uses
- trademark infringement claims: Greenpeace has not infringed AGL’s trademark.
Key Comments from the Court Regarding the Copyright Infringement Case
The Court concluded (among other things):
- the modified AGL logo was immediately juxtaposed by a play on AGL’s initials with the parodic or satirical words “Australia’s Great Liability”, accompanied by words decrying AGL’s environmental practices, such as “Still Australia’s Biggest Climate Polluter” or Generating Pollution for Generations
- many consumers would see uses of the modified AGL logo as darkly humorous because the combined effect is ridiculous
- a reasonable person reading the post would understand that the company criticized as ‘Australia’s great responsibility’ is not the author of the post
- the reader would understand that the message came from Greenpeace.
Key Comments from the Court Regarding the Trademark Infringement Case
The Court said that (among other things):
- Greenpeace’s use of the modified AGL logo was to identify the AGL brand and the company that AGL represents, as the object of criticism
- consumers would not perceive that Greenpeace is promoting or associating goods or services by reference to the modified AGL logo
- Greenpeace has used the AGL logo to refer to AGL and the goods and services provided by AGL.
Key takeaways for your organization
- Copyright and trademark infringement is a major threat to organizations. With the widespread sharing of an organization’s intellectual property on the Internet and social media platforms such as Facebook, Instagram and YouTube, it is now more difficult than ever for organizations to protect their intellectual property.
- It is important to register your trademarks to protect logos and designs from unauthorized use, notwithstanding the decision in this case.
- When assessing the risk of intellectual property infringement in your organization, it is important to keep in mind the various defenses that one party may rely on when using another’s intellectual property. organization, including where the purpose is “parody” or “satire”, as the Court held that was the case here.
This publication does not address all major topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice which may be relevant to the specific circumstances of the reader. If you found this publication interesting and would like to know more or would like legal advice relevant to your situation, please contact one of the people named on the list.
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