Intellectual property infringement is becoming an increasing risk to organisations. When assessing that risk, organisations should consider the protections under the Copyright Act and Trade Mark Act and the limitations of those protections.
A recent Federal Court of Australia Case exposed such limitations. This case found that charity organisation, Greenpeace’s use of energy company, AGL’s registered trade mark in an environmental campaign did not constitute copyright infringement and/or trade mark infringement.
The purpose of Greenpeace’s environmental campaign against AGL arose from Greenpeace’s concern that AGL had successfully persuaded consumers in Australia that it is an environmentally responsible energy provider, a claim which Greenpeace challenged.
Greenpeace subsequently commissioned a report which found that AGL claims it is the “biggest ASX-listed investor in renewable energy” when Greenpeace’s research showed that AGL continues to operate coal fired power stations and intends to keep operating those power stations until 2048.
On 5 May 2021, Greenpeace launched a media campaign against AGL in an effort to educate consumers about, what Greenpeace considered to be, ALG’s poor environmental practices.
The media campaign included the following categories of publications:
The publications included a modified version of AGL’s logo, which is a registered trade mark.
An example of an online banner can be seen below:
Source of image: AGL Energy Limited v Greenpeace Australia Pacific Limited  FCA 625
The copyright work in issue was AGL’s logo.
Greenpeace relied on two defences, known as the “fair dealing” defences under sections 41 and 41A of the Copyright Act 1968 (Cth) (Copyright Act).
Section 41 allows a fair dealing with (amongst other things) artistic work or an adaptation to be used if it is for criticism or review.
Section 42 allows a fair dealing with (amongst other things) artistic work or an adaption to be used for parody or satire. This means that a party may use artistic work “to expose, denounce or deride vice”, often in the context of a humorous or ridiculous juxtaposition.
A fair dealing refers to (among other things) the true purpose (that is, the good faith, the intention and the genuineness) of the critical work as opposed to attempting to profit unfairly from another party’s work.
AGL contended that Greenpeace infringed its trade mark in the AGL logo and contravened the Trade Marks Act 1995 (Cth) (Trade Marks Act) by using a modified version of the AGL logo in online banner advertisements and street posters.
AGL argued that Greenpeace’s use of the modified logo fell within the scope of classes in which AGL’s trade mark was registered, specifically educational services and scientific services.
Greenpeace denied infringing AGL’s trade mark on the basis that:
The Court held that:
The Court found (amongst other things):
The Court said that (among other things):
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.