Sunday, 19 September 2021

Australian Business Law Review, Vol 49, Part 2

ABLR Vol 49, Part 2 is out and features five excellent contributions:

* An Impending “Avalanche”: Debt Collection and Consumer Harm After COVID-19 by Lucinda O'BrienVivien Chen, Paul Ali and Ian Ramsay

* A New Worker Category under the Personal Service Income Regime in Australia by Christina Allen

* Federal Court Opens Door to Pre-trial Oral Discovery in Australia by Michael Legg

* Reckless Trading Makes Its DEBUT in the New Zealand Supreme Court by Matt Berkahn and Lindsay Trotman and

* Merger Movements: International Co-ordination of Merger Clearance Policy by Rob Nicholls 

I would again like to encourage prospective authors to consider submitting their articles to the ABLR. One significant advantage of seeking to publish your article in the ABLR is our much quicker turnaround times compared to other leading legal journals. We aim to publish practical business law articles on topical issues in a timely manner, which means we have to operate on shorter time frames.

Friday, 10 September 2021

Off to the US Supreme Court

We have some fantastic news about the next phase of the ugg case – we will be filing an appeal to the US Supreme Court.

The Morrison Government and Attorney General Michaelia Cash have come to the party with a grant of legal financial assistance of USD $150,000 under the Special Circumstances Scheme in order to assist us in retaining a specialist US Supreme Court advocate to run our case. It seems that the Government thinks we have a fair shot of winning on the merits in the US Supreme Court. Thank you very much to the Morrison Government and the AG for your financial support.

As a result of that financial support, we have been able to retain Seth Waxman of WilmerHale to run our US Supreme Court Appeal. Seth has been the Chair of WilmerHale Appellate and Supreme Court Practice for 20 years and is considered to be among the premier US Supreme Court appellate advocates. He is also a former Solicitor General of the United States, having served with distinction for President Clinton from 1997 to 2001. 

Our US legal team is now working on our petition to the US Supreme Court which is due on 4 October 2021.

We are confident of being able to present a strong case to the US Supreme Court. As stated by Seth in his letter to the Australian AG - “I am confident that if the Supreme Court takes the case, we will be able to make strong arguments on the merits.”

Our key argument is that the US doctrine of foreign equivalents must apply to both English and non-English generic words. How can it be illegal for US corporations to trademark a generic word from a non-English speaking country (say saké from Japan) in order to obtain a US product monopoly but legal to trademark a generic word from an English-speaking country (namely ugg) in order to obtain a US product monopoly.

The only thing we need now to increase our chances of the US Supreme Court agreeing to hear our case is further support from the Australian Government in terms of filing an amicus brief in support of our petition. As stated by Seth in his letter to the AG: “A friend of the court (amicus curiae) brief from the Australian government supporting U.S. Supreme Court review is critical to ensure these important issues receive attention at the highest levels of the U.S. legal system and the rights of the Australian nationals in this case are vindicated.”

We are waiting to hear back from the Government on their decision whether to file an amicus brief.

Liability for third party comments


The High Court has handed down a significant decision today on the liability of publishers for third-party user comments. As stated in the High Court summary of the judgement:

"A majority of the Court held that the liability of a person as a publisher depends upon whether that person, by facilitating and encouraging the relevant communication, "participated" in the communication of the defamatory matter to a third person. The majority rejected the appellants' argument that for a person to be a publisher they must know of the relevant defamatory matter and intend to convey it. Each appellant, by the creation of a public Facebook page and the posting of content on that page, facilitated, encouraged and thereby assisted the publication of comments from third-party Facebook users. The appellants were therefore publishers of the third-party comments."

It will be interesting to see how the publishers respond to the judgment.

Learning to Lead

Just completed a great free short leadership course through UNSW for UNSW alumni. Keep an eye out for it next year!

Learn to Lead with UNSW 2021
  • Type:Learning
  • Cost:Free