“All rise,” the bailiff says in a loud clear baritone voice. The Monday morning session of the District Court of New South Wales, Australia starts when Judge Alison Meyers enters the court and takes her seat at the bench. As is usual she has a long docket for the week, and this first case promises to take up a lot of the week. It’s complex and has political ramifications as well. Expecting this to take all day today and tomorrow, most of the people on the docket have been excused from attending today. Only those for the next two cases have been told to appear, just in case there’s a last minute agreement between the two parties for this one.
With the judge seated the bailiff hands up the first file while he says, “Be seated. The New South Wales Government Office of Environment and Heritage versus NPW Productions Limited for infringement of trading name and trademarks.” A group of middle aged lawyers at the table for the plaintiff stand while some older men sit beside them, and three mid-twenties people stand at the defendant’s table while three other young people sit beside them.
Judge Meyers looks them over, and says, “Will the lead member of each party introduce their parties, please. The rest may sit.”
The eldest of the plaintiff group remains standing while the rest sit down. He nods at the judge while saying, “Nathan Wright of the New South Wales Attorney General’s Department with Jason Smith and James White assisting, also of the Attorney General’s Department.”
He sits down and the young man still standing at the defendant’s table waits until the judge looks at him. When she nods he says, “Alan Friend of Nutt, Case, and Friend, assisted by David Nutt and Amanda Case.” There’s a lot of subdued laughter when the firm is named.
Judge Meyers glances out at the audience in the courtroom. As is usual the court is open to all who wish to watch the case, but she has a lot more watchers than she’s used to seeing. It takes her a moment to realise most of the audience are media representatives. She’s not happy about that, nor surprised when a government department is suing university students it’s good copy for the press; and the name of the defending firm is sure to add to that. She returns her gaze to Alan, “Mister Friend, you seem to be a bit young to be the lead counsel. How come?”
He half grins, and says, “We’re three very good friends who just graduated from law school last year. We all do civil law; Amanda is a Family Law specialist while David specialises in Contract Law and I do Business Law. Since this is my area of speciality I’m leading. On the advice of a good friend we decided to set up our own firm instead of starting out as junior staff in an established firm. As Graham told us, a law firm named Nutt, Case, and Friend will be very hard to forget.”
“Yes, that is a point. Word of mouth advertising should be high, if you perform well. And it seems you have a high profile case to start with. Well, we best get on with the case.”
The Plaintiff’s Evidence
Instead of immediately sitting down so the plaintiff’s counsel can start to give their evidence Alan continues to stand. After a moment, and a glance at the plaintiff’s table, Judge Meyers nods at him, and he says, “If it please, Your Honour, I think I can save us all a lot of time and boredom. The plaintiff has lodged more than four hundred pages of evidence to support their claim to the ownership and prior usage for a range of trademarks and terms. The defence is prepared to accept all that evidence as it relates to items of fact. We accept their claims to the ownership of the trademarks and to the evidence of decades of prior usage for the terms NPW and National Parks and Wildlife. This is not, and never was, in dispute by us. Our concern is their interpretation and application of the laws to the use of the terms. We seek only court and legal costs.” He sits down after conceding the bulk of the plaintiff’s case.
Judge Meyers stares at him for a moment, and turns to the plaintiff. “In light of that statement, Mister Wright, do you wish to add anything further about the terms, or your claims?”
Nathan stands, “Your Honour, we thank our colleague for his easy acceptance of our rights and ownership to the trademarks and terms in this case. We wish to reassert that we see their use of them as being an infringement of our client’s rights and wish them to stop using them. We also wish them to recall and remove all prior works using those terms. Our client feels the defendants’ misuse of them is affecting their image. We don’t seek any damages beyond legal fees and court costs.”
“Thank you, Mister Wright, and Mister Friend. I think we just cut about a day off the length of this case.” She turns back to Alan. “We may be able to get through this case very quickly if we can reach some more agreements. The crux of the matter seems to resolve around the use of two terms which you agree the Department has ownership of, but use anyway. This seems a conflict to me. Please explain yourself!”
The Defence’s Evidence
Alan stands, “Your Honour, before I get into details can I please get an agreement on the meaning of some terms about to be used?” She nods yes. “We’re aware the following terms have many meanings, but most are similar; the changes come about from usage in specific laws etcetera. For the course of this case we’d like to define the following terms in this manner: flora is any plant life; fish is an animal living in water; fauna is any living thing that isn’t flora, fish, or human; nature habitat is any habitat that is not a town, city, or village, be it natural or man made. If we can all agree to these definitions we can soon clear this up.”
Judge Meyers tilts her head as she studies him while trying to see where this is going. Failing in that she turns to look at Wright. He stands, and says, “Your Honour, our client isn’t prepared to accept those as the general usage definitions of those terms, but he is prepared to accept them for the purpose of the discussions of this matter.”
She nods, “Good. Maybe we can clear this up quickly now.”
When the judge looks at him again Alan stands, “Your Honour, the first item to clear up is the use of the term NPW. This is a set of three initials and can be used by any person or organisation for which they are the initials, as is the case with my clients. We’ve already conceded the plaintiff has used these initials in past documents and videos for decades, but always in regards to matters relating to their area of business, which is the management and care of nature habitats, fauna, flora, and fish. The only mention they make of humans is how they interact with the nature habitats, fauna, flora, or fish. Thus, their use and prior claim only applies to such usage. If my clients put out a document on the care of fauna using NPW they would infringe the rights of the Department. But my clients have not produced anything to do with the management or care of nature habitats, fauna, flora, or fish.” He’s about to go on when the judge holds up her hand in the universal gesture for him to stop.
She turns to Nathan, “Mister Wright, in the documents I reviewed for this case I saw no specific claims along those lines. Is there a specific incident where the defendants have used either term to refer to material of this type?”
Nathan talks with his clients for a few minutes. He stands up, “Your Honour, we’ve no knowledge of the defendants putting out material on the subjects of nature habitats, flora, fauna, or fish as defined earlier.”
“Thank you.” She turns back to Alan, and waves for him to go on.
Alan stands, “Previous case law is clear that prior right to a term is only relevant when in the same industry, or an allied industry where it can cause confusion over the brand naming. There are already a number of other businesses operating in this state while using NPW as a business name, initials, or a product name. The Department has taken no action against them because they’re in a different field to them, although I could argue a certain pump brand may come closer to their field than my clients’ field. My clients’ company, NPW Productions, makes videos of people in urban environments. The closest they’ve come to making a video in an environment similar to that of the plaintiff was when they filmed some activities on Bondi Beach and Manly Beach. But in these cases it’s clear the beaches were urban beaches, due to the background images of the city of Sydney.”