Commercial Law

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English High Court takes a Break in Kit Kat dispute

Monday, March 10, 2014

The chocolate wars continue with arch-rivals Nestle and Cadbury embroiled in another legal battle. With round 1 going to Nestle with its win in Cadbury’s bid to trade mark the colour purple, the tables have now turned, with Cadbury opposing Nestle’s application to protect the shape of the popular Kit-Kat. The case was heard before the English High Court, who took a Time Out from the decision making process and referred the matter to the European Court of Justice (CJ).

It is now up to the Smarties at the CJ to decide, in regards to registering shapes as trade marks, whether:

(1) The applicant must prove that a significant proportion of the public recognise the mark as distinctive through use or if mere recognition is sufficient; and

(2) There is an inherent distinctive character to the shape.

Additionally, an application may be precluded on the grounds the essential elements of the shape result from the nature of the goods or is a technical result. However, the law is unclear on whether the application must be invalidated based on one reason or whether it can be a combination of the two. This question has also been posed to the CJ for clarification.

When it comes to the Crunch, the decision could provide some useful guidance for Australian intellectual property law. At present, the Australian law requirement is that the trade mark in question must distinguish the goods at the date of the application, through the use made of the goods. Under Australian law, unlike the European provisions, shape marks are not expressly dealt with. 

As well as being a Boost for Nestle, a decision in their favour could have some interesting implications for trade mark requirements. 

Does your business supply on credit?

Tuesday, February 11, 2014

When a customer applies for a credit account it is critical that they are made aware of your Terms of Trade. The Terms will set out how credit is given, how goods are supplied to the customer, how payment is made and when title and ownership in those goods transfers to the customer. The terms should make it clear that title in goods will only transfer to the customer once the item has been fully paid for, this is called retention of title.

For more business, contract and commercial advice, contact our commercial lawyers at Matthews Folbigg. Our offices are located in Parramatta.

Phillip Brophy – phillipb@matthewsfolbigg.com.au or 9635 7966

Laura Willis – lauraw@matthewsfolbigg.com.au or 9635 7966

Terms of Trade - Does my business need them?

Tuesday, February 11, 2014

Terms of Trade are the terms and conditions that govern how your business deals with its customers in the sale and supply of goods and services. It is important to put these terms in writing (i.e. to form an agreement or contract) to ensure your customers are made aware of both their rights and obligations.

The Terms of Trade will cover such things as how orders are placed and accepted, price, payment terms, delivery, cancellations and returns, risk and insurance of goods, warranties and ownership of any intellectual property in the goods.

Contact our commercial law team for more information.

Phillip Brophy – phillipb@matthewsfolbigg.com.au or 9635 7966

Laura Willis – lauraw@matthewsfolbigg.com.au or 9635 7966 

Loaning money? Don't rely on a handshake - you need a Loan Agreement

Monday, February 03, 2014

Whether you are making a loan of money for business or personal purposes it is important to document your agreement with the borrower. This should set out how much has been loaned, repayment procedure, interest payable and the length of the loan period.

If the loan is for a large amount of money, it may require a security or guarantee document to provide the lender with further protection.

Matthews Folbigg Lawyers in Parramatta can assist in drafting loan agreements and associated documentation. Contact our commercial law team for more information.

Phillip Brophy – phillipb@matthewsfolbigg.com.au or 9635 7966

Laura Willis – lauraw@matthewsfolbigg.com.au or 9635 7966


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