Legal Analysis Report for FasterChef

1 Issues

From analyzing Pasty’s FasterChef case, obviously three legal issues can be observed, i.e. infringement of MasterChef trademark, infringement of MasterChef copyright, and passing off the MasterChef Trademark.

To be specific, the first issue mainly refers that both the name “FasterChef” and its trademark design infringe the intellectual rights of MasterChef trademark. As known to us, FasterChef sounds similar to the pronunciation of MasterChef, thus, kinds of confusion could be created for the consumers when they try to distinguish FasterChef from MasterChef. Moreover, the design of FasterChef trademark is also similar with the design h of MasterChef, i.e. from the consideration of trademark shape. Thus it can be called the FasterChef trademark infringes the Master trademark. The second issue mainly refers that the behavior Pasty uploaded on YouTube a video of a MasterChef program but added her own site’s address to the video infringes the MasterChef’s copyright. The video of MasterChef program is intellectual property of MasterChef, therefore, without the MasterChef’s permission, Pasty should not be allowed to disseminate the video on her website with no clear indications. Thus, it can be called the Pasty infringed the copyright of MasterChef company. The third issue mainly refers that the slogan “Be a MasterChef”advertised on the newspaper and magazine for increasing the website hits is passing off MasterChef, so are the FasterChef trademark and the video uploaded by Pasty; This issue is connected to the above two issues and will be further analyzed and discussed in the chapter 3 of this report. 

2 Related principles and laws

Before analyzing the issues stated above, related legal principles and intellectual laws will be introduced here ahead of time. The main laws in Australia referenced in this report include Trade Marks Act 2010, Copyright Law in Australia, and a passing off law practice. 

According to the Trade Marks Act 1995 in Australia, the infringement of trademark rights mainly refers that a person infringes a registered trade mark if the person uses as a trade mark a sign that is substantially identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered (Trade Marks Act-Sect 120, 2010); for the definition of deceptively similar, it mainly refers that a trade mark is taken to be deceptively similar to another trade mark if it so nearly resembles that other trade mark that it is likely to deceive or cause confusion (Trade Marks Act-Sect 10, 2010). Clearly a trademark’s name and design is deceptively similar to another trademark will be regarded as infringement of trademark rights.

According to the Copyright Law in Australia, the copyright in any work or other subject-matter is infringed when any act which the copyright owner has the exclusive right to do is done by a person in Australia who is not the copyright owner or his or her licensee (Copyright Law in Australia, 2005). Mostly, the infringement of copyright happens when a work like a book, DVD disk, video, etc is published, reproduced or performed publicly but without the copyright owner's permission. Clearly, a video published on the internet without the copyright owner’s permission is regarded as infringement of copyright.#p#分頁標題#e#

According to the legislation and judgment practice of Passing Off in Australia, passing off is not a statutory property right but is discussed in the same context as the statutory property rights as the protection achieved by a successful claim of passing off overlaps with some of the statutory rights. Unlike the intellectual property rights created by legislation, the right to bring an action to restrain passing off exists as a result of the development of general law via court decisions (Wadlow, 2005). A typical legal case of passing off in the world is that the court judgment over the legal disputes between Dastar Corp. and Twentieth Century Fox Film Corp, among which the Fox Film Corp accused the Dastar Corp of the  copyright infringement to the Crusade in Europe Book; and finally the Fox film Corp got the compensation and the Dastar Corp got punished because of infringing copyright. The law of passing off aims at preventing one person from misrepresenting his or her goods or services as being the goods and services of the claimant, and also prevents one person from holding out his or her goods or services as having some association or connection with the plaintiff when this is not true.

3 Legal application analyses for issues (800)

4 Conclusion (100) 
 
 
References
The Law of Passing-Off by Christopher Wadlow, 3 Rev Ed edition (November 23, 2005)