Luscious lips

The 'luscious lips' trade mark judgment last week recalls hours swinging on the Hills Hoist with a mouthful of jelly teeth while pretending to be a vampire or merely a fruit bat.

In Nature's Blend Pty Ltd (ACN 126 406 488) v Nestle Australia Ltd (ACN 000 011 316) [2010] FCA 198 Sundberg J of the Federal Court considered the Trade Marks Act 1995 (Cth) and Trade Practices Act 1974 (Cth) in connexion with the claim by Nature's Blend - a small confectionary manufacturer - that Nestlé had infringed its registered trade mark for 'Luscious Lips'.

Nature's Blend, initially selling "veterinary, animal and medical products", had expanded into confectionary. It was using the registered mark - satisfying s 17 of the Trade Marks Act - for chocolates as goods under class 30 of the Act. Nestlé, having acquired the Allens confectionary business, sold a product - mixed confectionary, including lip-shaped jellies - by the name of Retro Party Mix from 2007 to 2009. The packaging for that product referred to "luscious Lips" -

That's right! All your favourites are back, so put on those flares and get ready to party! Up to 7 lolly varieties including ... cool Cola Bottles, those radical Racing Cars, yummy Honey flavoured Bears, totally freeeekie Teeth, luscious Lips, partying Pineapples and outrageous Raspberries.

The product was elsewhere promoted as "All Delicious! All FUN! 99% Fat Free!". How can you go past something that's both FUN and fat free (and presumably didn't involve the evisceration of kittens, death to innocent tuna or the demise of a rainforest or two)?

Nature's Blend argued that Nestlé was liable in relation to trade mark infringement under the Act, the tort of passing off, and misleading and deceptive conduct under the Trade Practices Act. It submitted that

submit that the phrase 'luscious Lips' is not a phrase which ordinarily and naturally describes confectionary and is 'in no sense laudatory of confectionary, whether in relation to the shape, appearance, or taste', nor does it refer to the character or quality of confectionary. ... the phrase is inherently distinctive and newly-coined ... in relation to confectionary.

Sundberg J noted that

The words 'luscious Lips' are substantially identical with or deceptively similar to the 'LUSCIOUS LIPS' mark. However this in itself is not sufficient to infringe; the context is all-important.

After discussing the 'Kettle Chips' and other cases he stated that

When considering the evidence on use as a whole, I am not satisfied that the there has been 'use as a trade mark' for the following reasons.

First, the word 'luscious' is descriptive and is intended to convey to consumers a laudatory, perhaps even humorous, description of such of the respondent's confectionary contained in the Retro Party Mix Product which are shaped as lips, in the same way that the expression 'cool Cola Bottles' or 'yummy Honey flavoured Bears' provides a laudatory description of confectionary in the product that are shaped like cola bottles and bears respectively. It may be the case that some consumers would not read the marketing narration on the back of the pack at all. However, for those consumers who took the time to do so, my impression is that they would have taken 'luscious Lips' as essentially a humorous way to describe the products contents, not as a badge of origin. See Johnson & Johnson Australia Pty Limited [1991] FCA 310; 30 FCR 326.

Second, the effect of the words 'luscious Lips' on consumers is diluted by the prominence of the well known mark 'ALLEN'S' on both the front and back of the packaging, along with the mark 'NESTLE' appearing on the back of the packaging. These two registered marks perform the role of distinguishing the respondent's confectionary from that of others. In addition, the product name 'RETRO PARTY MIX' appears in large font on the front and the back of the product. I accept that, in some circumstances, there may be trade mark use despite other marks appearing on the product: see Anheuser-Busch, Inc [2002] FCA 390; 56 IPR 182. However, in my view, this case is distinguishable from that type of case. In Anheuser-Busch, Inc [2002] FCA 390; 56 IPR 182 the infringing mark 'Budweiser' was the most prominent word on the label. That is not the case here. In this case, the registered marks 'ALLEN'S', and to a lesser extent 'NESTLE', are prominent especially when contrasted with the positioning and use of the words 'luscious Lips'. See Chocolaterie Guylian NV 258 ALR 545.

Guylian was noted here last year year.

In essence, Nestlé's use of the words in the particular setting setting was not as a trade mark and did not infringe the Nature's Blend mark: its use of 'luscious' was descriptive (with consumers likely to regard the expression as laudatory - as in tasty, delicious, yummo - and humorous) and the effect of the phrase was diluted by the prominence of the Nestlé, Allens and RETRO PARTY MIX marks. Interestingly, Sundberg J was prepatred to find that Nestlé was using the phrase as a good faith description, given the claim by Nestlé about development of the packaging and its unawareness of the Nature's Blend mark.

ALRC Secrecy Report

The Australian Law Reform Commission (ALRC) has released its report on Secrecy Laws and Open Government in Australia.

The report reflects a 15-month inquiry. It features 61 recommendations for reform, with a new principle-based framework to "reinforce open and accountable government while ensuring adequate protection for Commonwealth information that should legitimately be kept confidential". The ALRC comments that -

The management of information can be conceived of as a spectrum, with openness of information and protection of information at opposite ends. Secrecy provisions are situated at different points on the spectrum—at times emphasising protection; at times facilitating information handling, sharing and disclosure.

The 642 page report is a major study that identified 506 secrecy provisions in 176 items of Commonwealth legislation, including 358 criminal secrecy offences.

The ALRC comments on "considerable inconsistency in the framing and elements of specific secrecy provisions, reflecting their introduction at different times, using different language and often with widely ranging penalties". It also notes the catch-all nature of some secrecy provisions and over-reliance on criminal sanctions.

The report indicates that administrative and disciplinary frameworks should play the central role in ensuring that government information is handled appropriately. "In most cases, unauthorised disclosure of Commonwealth information can be dealt with through better education and training, improved information-handling practices and, where necessary, public service disciplinary procedures."

It accordingly suggests a "winding back" of reliance on criminal sanctions for unauthorised disclosure of information, including repeal of ss 70 and 79(3) of the Crimes Act 1914 (Cth) - "Criminal sanctions should only be imposed where the unauthorised release of information has caused, or is likely or intended to cause, harm to identified public interests."

The ALRC recommends that every Australian Government agency should develop and publish information-handling policies and guidelines to clarify the application of secrecy laws. It also recommends a role for the proposed new Office of the Information Commissioner to provide independent oversight of the manner in which the agencies discharge their information-handling responsibilities.

Race to the bottom, emoting all the way

Students in my intellectual property class yesterday had fun joking about Adelaide water and geographic indications. Perhaps Adelaide water does indeed have special properties, which might explain the latest election campaign strangeness in South Australia.

Recent posts in this blog have questioned the rhetoric used by the current SA Attorney-General, including claims that he is supported by all "decent people" - a category that apparently doesn't include the SA Supreme Court and much of the legal profession. Mr Atkinson is warring with outlaw motorcycle gangs (aka "organised crime") and gamers (apparently more threatening than the OMGs), and has had trouble with the notion of an implied right of political communication.

The SA Premier, according to the online offshoot of the dominant Adelaide newspaper (the same offshoot damned by the Attorney-General as a "sewer"), promises a revolution in the criminal justice system if his Government is re-elected.

Premier Mike Rann yesterday said he would change the law to allow juries "in appropriate cases" to hear evidence of relevant prior criminal behaviour and offending by the accused.

"Serious criminals like those who are violent, child-sex offenders, or internet predators, should have to account to a court for their actions and previous behaviour," Mr Rann said. ...

Labor would amend the 1921 Evidence Act to allow juries to hear similar fact evidence, propensity evidence and evidence of uncharged acts. Mr Rann said if re-elected, he would also tighten sentencing legislation to take away the option of suspended sentences for serious, violent and recidivist offenders.

So much for the notion that people should not be recurrently punished for the same offence.

In a nice piece of hype, unsubstantiated by reference to statistics, the Premier is reported as stating that "There is an unacceptably high risk of child-sex offenders repeating their crimes after release".

The meaning of that statement is unclear. From some perspectives any risk - no matter how remote - is too high and it is imperative to engage in preemptive social prophylaxis, such as the surgical castration of offenders discussed in Richard Wetzell's Inventing The Criminal: A History of German Criminology, 1880-1945 (Chapel Hill: University of North Carolina Press 2000) or extra-judicial permanent detention of every offender.

Lest the Government's 'war on crime' credentials be in doubt, the Premier promises extended proceeds of crime penalties -

"These laws will allow for the confiscation of a convicted offender's property, whether or not it is lawfully acquired and whether or not there is any level of proof about the source of any property at all," Mr Rann said.

Let's not bother about notions of proof or justice when a headline is available.

Details of the Government's new justice platform are, as yet, unavailable. The latest media release states that -

The Rann Labor Government is demanding to know how the Liberal Party will pay for its promise of "building more prisons" by 2014 – or - by 2018.

The Liberal prisons policy announcement today shows both dates. But no money. Correctional Services Minister Tom Koutsantonis says the Liberals' 10-page policy, does not promise a single new dollar for adult prisons.

This is yet another sloppily-prepared Liberal policy without any costings – an all-too familiar theme that shows Isobel Redmond is not ready for Government.

South Australians deserve better than this kind of dodgy ducking and weaving over costings.

In the absence of new prisons, the Liberals will have to release hundreds of prisoners back out into the community if it wants to reach its target of reducing the prison population down to "the national average".

This is nothing but a soft-on-crime, soft-on-criminals policy.

Beware, it seems ... hordes of drooling axe-murderers will shortly arrive (modems balanced on the back of their Harleys?) to eat your kiddies and defenestrate the family cockatoo or budgie.

The Opposition (in a policy statement decorated with razor-wire and searchlights) meanwhile promises that -

A Redmond Liberal Government will put an end to the premature release of offenders from prison who have not completed rehabilitation – a practice that has flourished under the Rann Government.

Swatting (or swotting) silks

From Conor Gearty's review in the latest LRB of UK human rights law texts -

Of the three books, Clayton and Tomlinson is the best organised from this point of view. Every known case is in there somewhere and the arrangement of its sections allows busy lawyers swotting up the night before to find what they are looking for reasonably quickly: the ten cases on a certain meaning to be given to ‘inhumane treatment’ under Article 3, for example, or the 15 dealing with the five relevant aspects of the meaning of ‘civil rights’ under Article 6. Lester, Pannick and Herberg is grander in its presentation, but the irrepressibility of human rights law means that it feels rather short if you want instant help. Beatson, Grosz et al is in some ways the best of the three in that it is more reflective, more inclined to look behind the law to think things through. But for this reason it may appeal more to academics (and even brave members of the public) than to litigating lawyers. The barristers’ method is first to identify the issue (this is often the hard bit), then to run off to the books to find the avalanche of cases that will fill out the written submissions on the issue (this is called ‘the common law method’ – it’s been made much easier by the new variant of it, ‘cut and paste’). Then (another hard bit) all of this has to be distilled into a set of principles or precedents which are applied to the facts in a way beneficial to the client – this is often done in court by means of oral submissions. Because British lawyers are simply far too good and because the system is adversarial, all advocates are in perpetual terror of being found out. I know of a case in which a lawyer’s entire written argument was destroyed when the other side pointed out that the law it relied on wasn’t yet in force.

methodological totalitarianism, substantive irrelevance

While reading Duncan Thompson's Pessimism of the Intellect? A History of New Left Review (Monmouth: Merlin Press 2007) and some 'law & culture' or 'culture & technology' journals I have been reminded of the 'Mr Perestroika Letter' debate in the US ten years ago.

In 2000 an anonymous political scientist (or group of pol scientists) under the guise of Mr Perestroika sent an email to a handful of US political scientists, inviting recipients to forward it to others. Within a few days the text had achieved wide distribution within US academia and has been claimed as opening up the discipline.

'The Perestroika Movement in American Political Science and its Lessons for Chinese Political Studies' by Shelley Rigger in 14(4) Journal of Chinese Political Science (2009) 369-382 commented that -

The Perestroika movement's primary objective was to pull the discipline back from what many political scientists saw as a pervasive drift toward methodological totalitarianism and substantive irrelevance. "Substantive irrelevance" referred to the selection of research questions that lent themselves to “cutting edge” methods—even if they had little relation to the facts and problems facing political actors in the real world. In using the phrase "methodological totalitarianism", the Perestroikans, as they came to be called, were calling attention to their perception that only a narrow range of methods and approaches could pass muster with hiring committees at the top universities and editors at the top journals. That narrow range of methods and approaches excluded much of what had traditionally been included in the discipline of political science.

She goes on to note the argument that -

Because publication in the journal is such an important marker of success in the discipline, its preference for a few methods and approaches was making it difficult for scholars who used other methods and approaches to be hired and tenured because their articles were so rarely published in the APSR and its regional offspring. As graduate students became aware of the challenges facing political scientists whose work fell outside the narrow range of acceptable methodologies, some dropped out of the discipline, while others changed their research to make it conform to these preferences—even if it meant sacrificing substantive interest, relevance, even common sense. As Dorian T. Warren put it, "This methodological straightjacket in the broader discipline and in the field of American politics, along with its influence on the subfield of race and politics, impedes relevant and important research on the most pressing political problems facing us today",

It is interesting to speculate about disciplinarity within the legal community, in particular the bias of particular law journals (and inded of faculties) towards invocation of cult figures such as Lacan and Derrida (or even of Zizek, Lyotard, Bhabha and Stiegler, as acolytes weary of the old gods) and an an esoteric style that disguises both a lack of originality and insight. The 'Perestroika' concerns might be addressed to cultural or communication studies journals and conferences that appear committed to legitimating the pretensions of particular schools by excluding cross-disciplinary writing, especially writing that does not exhibit the requisite hermeticism, does not invoke the guru du jour or relies on a different methodology.

The irrelevance of cultural studies journals such as Transformations and Semiophagy (note here) is perhaps not be lamented. We might ask however whether legal scholars, given pretensions to offering more than entertainment or an occupation for the bewildered & self-involved (law does, after all, affect people), should ask whether whether there's a need to break down some of the disciplinary silos and to encourage a shift away from the arid, repetitive use of mantras such as "jouissance" encountered at postgraduate law conferences.

Human Rights Myths

The Castan Centre at Monash University is issuing a series of human rights "myth-busters", each of which focuses on claims about human rights legislation from some of the people opposed to a Human Rights Act for Australia.

The mythbusters are worth reading in their own right. They're also worthy of attention in commemoration of the late Ron Castan QC, a brilliant lawyer and a good man.

The current items are -

Myth 1: The proposed Human Rights Act would shift decision making to unelected judges

Myth 2: Judges would be able to effectively change the law under a Human Rights Act

Myth 3: Judges would use a Human Rights Act to bully politicians into changing laws to comply with human rights

Myth 4: Human rights are too political for judges

Myth 5: Human rights are too vague for judges

Myth 6: A Human Rights Act would be a lawyers' feast

Myth 7: Our human rights are adequately protected already

Slash your wrists ...

... or just move your btm.

The latest promo document from the Australia Council for the Arts, the cultural apparatchiki of Strawberry Hills, announces that 15-24s are "more creative" than their older peers. Whahoo! By the time you get to 40 (there's no life after 50) you are reduced to a feeble hunt for woolly cardies and comfy slippers rather than "engaging" with the internet or having a spirited discussion about St Jack Derrida and Bernard Stiegler?

The Oz Council's More than bums on seats: Australian participation in the arts study was -

conducted for the Research & Strategic Analysis section of the Australia Council by instinct and reason. It paints a comprehensive picture of how Australians participate in the arts today.

This research aims to provide insights into the attitudes and values that influence our creative participation (where we make something ourselves) and our receptive participation (when we attend a live event, an exhibition or read literature).

It's tempting, so tempting, to say ah yes, begone dull empiricism when you can rely on "instinct and reason". Relying on entrail of newt or kaka of bat is so so yesterday! That gibe's unfair: instinct and reason is the name of the research specialist and presumably they're very good at their job. Hats off to them.

Creativity? The Council's summary reports [PDF] that

One in three Australians are already using the internet for the arts - mostly for attendance-related activities (such as researching artists/events or downloading music), but some are using it for creative participation (such as posting works of art, writing blogs or working with others to create art).

The internet is a key tool for the arts

More than half of all 15-24 year olds had used the internet to engage in some form of art during the last year and were more creative online than others. The most widespread online art creations are writing and visual art/film/video, while the most frequent mode of creative participation is being involved in an online community or social network concerned with art in some way.

Creators are more likely to be:

15-24 years
Highly engaged: both participating & attending
Attending Indigenous arts [sic]
High school or tertiary students
Really like the arts

Consumers are more likely to be:

35-64 years
Attending only
Not attending Indigenous arts
In full time paid employment, carring out home duties or retired
Like or neither like or dislike the arts

So, if you're a spotty 16 year old blogger writing deathly prose ("I ate a cheeze sandwich") for an audience that comprises yourself and your cat you are a creator. A keyboard + modem = creativity. David Malouf, eat your heart out.

The 69 page full report suggests that in the yartz it is business as usual. "Australians are more likely to take in someone else's art than to create it themselves". No great revelations there, and perhaps it's a good thing that we're not suffering from a surfeit of wannabe Douanier Rousseaus.

Nine in ten of the Council's population (apparently a 3,000 person sample, with a bit of help from a focus group or two) claimed to have "receptively participated in at least one art form", with four in ten having "creatively participated in the arts" (eg by sewing). Governments should be generous, because "only a small group (7 per cent) were not engaged with the arts in the past 12 months".

Literature is the most popular art form, with 84 per cent reading – mostly novels though one in five read poetry. Creative writing was also popular with 16 per cent engaged, 7 per cent writing a novel or short story and 5 per cent writing poetry.

On a cursory read of the full report and summary it is unclear whether the 5% to 16% is a proportion of all adult Australians, a proportion of 15% of people who read and write or of the 1% who participated in but did not "attend" (presumably because they were on stage) a creative writing event.

Of course the Council's Australians are united in their support for the arts: "Australians' attitudes towards the arts are positive ... They widely believe that the arts should be an important part of every Australians' education, make for a richer and more meaningful life, and that there are plenty of opportunities to get involved."

Young people displayed higher levels of creative participation than the rest of the population. They were more likely to be creatively engaged in visual arts and crafts, theatre and dance, creative writing and music. This was to some degree a reflection of education; with young students more active in creative participation than young workers. Arts participation levels amongst younger people also appeared to be on the rise, with this group more likely to have increased their involvement in the arts in the last year. With a higher concentration of internet users, young people were engaging with the arts in new and evolving ways.

The study adopts the usual funky segmentation: lovers, flirters, un-attached and outsiders ... a 2010 riff on stars, dogs, cows and other quadrant labels from the world of McKinsey.

• The lovers (38%) are highly engaged with the arts and see the arts as an integral part of their lifestyle. They also hold the view that the arts provide them with a more meaningful and richer life as well as help them feel part of their local community.
• The flirters (26%) are more likely to be influenced to attend arts events by their friends than the ‘The lovers’. They like the arts, but are not necessarily convinced that they help them feel part of their local community. However they strongly believe that the arts provide a way of saying important things that need to be said in our society.
• The un-attached (19%) are those who have a neutral attitude towards the arts- many have not actually participated in, or attended any, of the main art forms in the past year, and some have never experienced these art forms at all. While they do not dislike the arts per se they just cannot see the personal relevance of the arts to them.
• The outsiders (17%) believe the arts tend to attract people who are pretentious and elitist. They believe the arts require a reasonable level of understanding to appreciate them fully and therefore the arts are "not for them".