Franchise agreements often contain restraints of trade. The restraints typically apply for a period of time after the franchise ends, and may restrict franchisees from competing with the network or conducting a similar business within a particular geographical area.

Whilst these restraints can be legitimate and important protections for the franchise network, they can also be a major hinderance for franchisees looking to move onto their next venture.

Clause 23 of the Franchising Code of Conduct can be a way for franchisees to avoid the operation of these restraint clauses. However, it has quite a narrow application - and there numerous proactive steps that franchisees must take to obtain the benefit of the exception.

This article discusses the 7 July 2022 majority decision of the Full Federal Court in Campaigntrack Pty Ltd v Real Estate Tool Box Pty Ltd [2022] FCAFC 112. 

This decision highlights that businesses can be held liable for copyright infringement committed by a third party developer, but that the risk can be mitigated by checking the developer’s history and insisting on appropriate warranties in the development agreement.

Readers may recall Holman Webb’s September 2021 article ‘The Future of Artificial Intelligence - Can AI invent software?’, which reported on a landmark judgement by Justice Beach of the Federal Court in the matter of Thaler v Commissioner of Patents [2021] FCA 879, which determined that under Australian law, artificial intelligence could be listed as the inventor in relation to an application for a patent. 

Readers may also recall that the Commissioner of Patents appealed that decision.

That decision has now been overturned by the Full Court of the Federal Court, in a unanimous judgement which brings Australia into line with most other jurisdictions around the world.

If you purchased a business and the sale included all of the business’s computers, would it be reasonable to expect to be able to use the software installed on those computers?

In the recent matter of QAD Inc v Shepparton Partners Collective Operations Pty Ltd [2021] FCA 615, the Federal Court ordered Shepparton Partners Collective Operations Pty Ltd (‘SPC’) to pay $1M+ in damages to software company QAD Inc (‘QAD’), after finding that SPC had infringed copyright after purchasing the business from Coca-Cola Amatil (‘CCA’) without having secured a transfer of the relevant software licence agreement.

• After the sale QAD required payment of a fee as a condition for its consent to transfer the licence, which SPC refused to pay.
• SPC denied that it had infringed copyright, claiming that it had an implied licence from QAD to use the software.
• SPC cross-claimed against Sale Co 1 Limited (‘SaleCo’) and CCA on the basis they had failed to use their ‘best endeavours’ to secure a transfer of the licence agreement.

The Commissioner of Patents will appeal the Australian Federal Court’s recent decision in Thaler v Commissioner of Patents [2021] FCA 879, to allow machines to be recognised as inventors on a patent application, on the basis that the decision is ‘incompatible’ with Australian patent law

Trade marks are the essence of franchising. 

All franchise systems strive for widespread recognition of their 'brand'. A common thread between successful franchise systems is that their customers receive a consistent level of quality in goods and services provided under instantly recognisable trade marks. 

However, there are often complexities in the registration and use of trade marks within a franchise system. For franchisors, getting the licensing right is not always clear cut, nor is being able to secure registrations for new products. On the other hand, franchisees will often enhance the reputation of a trade mark, but have no ownership interest and can carry the risk of infringing a competitor's trade mark. 

This article explores the importance of trade marks to a franchise system, and the key parties involved in it.

Virtual meeting platforms have seen user numbers increase substantially since the end of 2019. Services such as Microsoft Teams, Skype and Zoom have become an increasingly utilised tool as a large number of businesses have directed employees to work from home during the various COVID-19 lockdowns.

When utilising services such as Skype or Zoom, businesses need to be aware of their terms and conditions, particularly what they say about intellectual property relating to content being presented through the platforms.

Over the years, rights holders have tried several different creative ways to identify and prosecute copyright infringers using the internet. One way of doing that is to compel the potential infringer's internet service provider to produce relevant information through preliminary discovery.

The recent decision of Siemens Industry Software Inc v Telstra Corp Ltd is an example of how copyright owners, especially those whose rights are valuable on a "per copy" basis, can use preliminary discovery to find the missing puzzle piece from ISPs.

Trade marks are core assets of many businesses, although unfortunately in Holman Webb's experience - they are often overlooked.

A few recent cases have highlighted just how important it is to ensure your trade mark arrangements are in place and, just as importantly, effective.

it is crucial to keep in mind that registering a trade mark is not the end of the process; there have been many cases of businesses ‘setting and forgetting’ their marks, only to have their registrations challenged.