Below is a link to the US Supreme Court listing of our case. You can click on the links to get a full copy of our Petition and Appendices.
As the case was docketed on 6 October 2021, the Australian Government has until 5 November 2021 to file their amicus brief - only 25 days to go!Monday, 1 November 2021
Federal government refuses Nick Xenophon’s call to join David and Goliath battle
For some inexplicable reason the Attorney General has advised us that she is not intending to file an amicus brief in support of our US Supreme Court appeal despite giving us $200,000 under the Special Circumstances Scheme to hire a specialist US Supreme Court advocate to run our appeal, namely Seth Waxman of WilmerHale.
Interestingly the Special Circumstances Scheme Guidelines state that a grant will be awarded "where no other scheme of legal financial assistance applies, but there is a moral obligation on the Commonwealth to make a grant".So it seems the Australian Government acknowledges that there is a moral obligation to give us $200,000 to run our case but not a moral obligation to file an amicus brief to help us win.
Having said that, we are pulling out all stops to try to get the Government to change its mind.
Ugg case - Petition to US Supreme Court for a Writ of Certiorari
We filed our Petition for a Writ of Certiorari with the US Supreme Court yesterday.
I have attached a few pages which outline the questions we are presenting to the Court as well as our Introduction.The questions presented are:
1. Whether a term that is generic in the English speaking foreign country from which it originated is ineligible for trademark protection in the United States.
2. Whether and, if so, how the “primary significance to the relevant public” standard in 15 U.S.C. § 1064(3) for determining whether a registered trademark has “become” generic applies where a term originated as generic before registration.
We are still trying to convince the Australian Government to file an amicus brief in support of our Petition. They have until 4 November 2021 to file their amicus brief.
FY2021 National Pro Bono Target Report Released
It is very dissapointing that a significant number of signatory law firms to the National Pro Bono Target missed their target of 35 hours per lawyer over the last year. In fact a whopping 31 of the 53 large law firms or 58.6% missed their targets.
Given all the benefits which large law firms enjoy due to being a signatory to the Target in terms of marketing their firms, winning Government work and securing work from corporates with a strong commitment to ESG, I am wondering whether the Australian Pro Bono Centre should consider introducing a name and shame strategy in the future for firms which consistently fail to meet their targets.I should add that large law firms are defined as firms with more than 50 lawyers and that the main shortfalls occur in the 50 to 200 law firm category and not the 450 plus lawyer category (although there was one law firm in that 450 plus lawyer category which fell way short of the target only racking up 20.6 hours per FTE lawyer).
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'Brien, Vivien 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
FAIRFAX MEDIA PUBLICATIONS PTY LTD v DYLAN VOLLER NATIONWIDE NEWS PTY LIMITED v DYLAN VOLLER AUSTRALIAN NEWS CHANNEL PTY LTD v DYLAN VOLLER [2021] HCA 27
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.
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