Tech Law news 6 April 2010
Don’t forget the domain names
Securing key domain names likely to be associated with a venture is business-101. Unfortunately for Tourism Australia, they launched their new “Nothing like Australia” campaign without registering www.nothinglikeaustralia.net, which has now been setup as a spoof site. They are now investigating legal action against the site for alleged misuse of a trade mark.
This raises the question of whether parody is a defense to trade mark infringement (for a local situation, see here). In New Zealand, there is no specific parody defence in the Trade Marks Act 2002, although a trade mark must generally be used “in the course of trade” for infringement to occur. A 2007 case, Solid Energy New Zealand Ltd v Mountier raised the question of whether use of a trade mark was use “in trade”. It found that the parody was not “in trade” for the purposes of the Fair Trading Act 1986, but did not reach a conclusion on the trade mark aspect. It also found that the trade mark owner had an arguable case for “exclusive use” of the trade mark, which (assuming a broad application what is “use”) would seem to prevent a parody defence. Whether or not the Bill of Rights Act 1990 (section 14) would override that is yet to be seen.
Cost of world-wide advertising campaign: AUD$150 million. Cost of not registering obvious domain names: $19.95. Parody site: priceless.
Gene patent ruled invalid
For the first time in the US, a judge has ruled that a human gene patent was invalid. This casts doubt on the validity in general of gene patenting in the US, the key market for biotechnology.
New Zealand’s in-progress Patents Bill (reported back from select committee last week) does not expressly exclude gene patents. It does exclude patents contrary to morality, which cover some biotechnology applications. However it does add a requirement for “usefulness”, which will prevent gene-related patents from being granted when no specific use has been discovered or disclosed (as has happened previously). But the value of a gene patent in a particular market is of questionable value, if it cannot be patented in key worldwide markets. The US case (which is sure to be appealed) is therefore of major importance to the biotechnology industry worldwide.
Online health records coming to New Zealand
2014 has been set as the target date for an online national health records system in New Zealand. Meanwhile, ISO (the International Standards Organisation) recently released new standards on electronic health records. From the press release:
Together, the two documents provide a powerful comprehensive solution to address e-health data integrity, including ethical and legal concerns, privacy protection, regulations concerning access and disclosing of records among other needs specific to the industry.
It will be interesting to see if the New Zealand programme achieves ISO compliance from the outset. The Privacy Act 1993 requires that reasonable safeguards be used to protect personal information, and in the case of service providers, that “everything reasonably within the power of the agency is done to prevent unauthorised use or unauthorised disclosure of the information”. It would be difficult to argue that failure to acheive “reasonable compliance” with an ISO standard (representing best, or at least good, practice) meets that standard.
