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BTX3181 examination 2020  Semester 1

Question 1

Kanye West a famous rap artist who also sells sorting clothing and shoes under the name Yeezy. Picture 1 below,  shows his latest shoe design.  

He designed this shoe and wants to prevent others producing “rip-off” versions of his shoe.  His manager advised him to do this in Australia requires a design registration under the Designs Act 2003.  

The manager conducted a market analysis of available beach shoes and has found the following:

(a) Picture 2 - Anais Maupoli design for ISA-Traedsko Gmbh Australian Design registration number 201814051;

(b) Picture 3 Merrell Hydro Moc,

(c) Picture 4 Clapzovr water shoe and

(d) Picture 5 Hollow shoes.

Pictures 3-5 are not registered designs but are available and sold on-line and in stores in Australia.

Explain to Kanye what he has to establish to obtain a registration of his shoe under the Designs Act 2003 (Cth). In your answer, refer to appropriate sections and cases.

20 marks

Question 2. 20 marks

In October 2019 Kylie Jenner the reality star posted a video of her singing a song “rise and shine” to her daughter Stormi. The video went viral on the internet, and never wanting to miss a business opportunity, she commenced making T-shirts with “Rise and Shine” on them. She also filled for a trade mark in the words “Rise and Shine” in Class 25 for clothing including T-shirts in America.  

She now wants to apply for a trade mark in Australia in the words “rise and shine”.

Your searches of the internet provide the following facts:

Vuori Inc for clothing has an Australian trade mark registration for clothing class for the words “The Rise, The Shine”. Since 8 September 2017 registration number 18810091 in Class 25; and is used on t-shirts and other clothing.  Vuori Inc is an international firm that makes premium performance apparel, that integrates fitness, surf, sport and art, founded in 2013 in the California, USA.

An Australian website Chargrilled (chargrilled.com.au) sells a range of funny, retro and offensive t-shirts. One of their t-shirts (available in any colour) is a simple design having just the words “Rise & Shine”. This t-shirt has been on sale for a number of years.

Quicksilver name one of their T-shirts “Rise And Shine” because of the print design has sunrays behind a palm tree but do not use the words on the T-shirt itself.

Threadheads another Australian online clothing retailer also uses the name “rise and shine” for one of the T-shirts called the “Rocketman - Rise and Shine”  but the words are not printed or used on the t-shirts itself. 

What you are to do:

1. Explain to Kylie Jenner whether she can register “rise and shine” as a trade mark in Australia for clothing?  

Question 3 20 marks

In-N-Out Burger is an American regional chain of fast food restaurants with locations primarily in California and the Southwest. It was founded in Baldwin Park, California, in 1948 by Harry Snyder and Esther Snyder. The chain has expanded to 300 stores in six states being California, Arizona, Nevada, Utah, Texas, and Oregon. It has a website in-n-out.com which sells burgers but also merchandise including; key rings, lanyards, hats, caps, mugs, stickers, playing cards, duffel bags  and t-shirts with images including  the logo shown in picture 1.  The logo is also the signage for all stores and used on all products and menus in-store and on-line.

Many foreign tourists visit In-N-Out restaurants in the USA, including international visitors, flight crews, and university students as In-N-Out restaurants are also situated near universities with international students. In-N-out Burgers do not have physical burger shops in Australia at present but have been involved in highly published “pop-up restaurants” for the past six years in Sydney, and Melbourne, at festivals and events.

Down-N-Out are a new burger business in Sydney that want to produce fresh burgers in the style of the In-n-out burger.  They propose to use the logo in Picture 2 for their burgers.

Explain to Down-N-Out whether their logo would be likely to mislead or deceive consumers under s18 Australian Consumer Law. Use appropriate sections and cases to illustrate your answer.