IPMojo

BOOK AN APPOINTMENT

Archives for September 2025

by

From Torque to Tension: When Distributorship Dreams Unwind

What happens when a long-standing distribution relationship morphs into a promise of “forever” — and then collapses under the weight of commercial reality?

That’s the story in Torc Solutions Pty Ltd v Unex Corporation d/b/a Hytorc [2025] FCA 1124, where the Federal Court had to untangle claims of perpetual agreements, economic duress, misleading conduct, and an alleged “termination strategy”.

The Background

Torc Solutions was the Australasian distributor of torque wrenches and industrial tools sold by US entities Torc LLC and Hytorc.

When Torc LLC shut down globally in 2020, Torc Solutions looked to keep its business alive through a home-branded (“private label”) supply deal with Hytorc.

A teleconference between the parties fuelled Torc’s belief that an ongoing “Hytorc Agreement” had been struck, giving them perpetual supply rights on the same terms as their earlier Distributor Agreement.

Later, a formal Branded Product Distribution Agreement (BPDA) was signed. When that deal fell apart over insurance requirements and Hytorc’s decision that the arrangement was no longer viable, Torc alleged that:

  • a binding agreement already existed from the teleconference,

  • the BPDA was signed under economic duress, and

  • Hytorc had engaged in misleading, deceptive, and unconscionable conduct.

The Court’s Findings

Justice Neskovcin dismissed all claims by Torc, finding:

  • No perpetual contract – Courts rarely find distributorships to be “forever agreements”. The Distributor Agreement ended when Torc LLC closed.

  • No binding teleconference deal – The discussions fell into Masters v Cameron’s third category: “we’ll get something in writing later”. No enforceable contract arose until the BPDA was executed.

  • No duress – Telling a counterparty “sign the agreement or we won’t supply” was not unlawful pressure, but part of hard commercial bargaining.

  • No misleading or unconscionable conduct – The evidence didn’t support that Hytorc had promised supply it never intended to provide.

Bottom line: application dismissed.

Why It Matters

For brand owners and distributors alike, the lessons are sharp:

  • Paper it, or risk it – A teleconference transcript doesn’t replace a signed agreement.

  • “Forever” is a fantasy – Unless clearly expressed, distributorships and licences will be terminable.

  • Economic duress is hard to prove – Commercial pressure, even bluntly applied, rarely crosses the line.

  • Don’t over-rely on private label promises – A failed transition can leave the distributor exposed.

This case is a reminder that distribution and licensing deals live and die by what’s actually written down.

by

Deepfakes on Trial: First Civil Penalties Under the Online Safety Act

The Federal Court has handed down its first civil penalty judgment under the Online Safety Act 2021 (Cth), in eSafety Commissioner v Rotondo (No 4) [2025] FCA 1191.

Justice Longbottom ordered Anthony (aka Antonio) Rotondo to pay $343,500 in penalties for posting a series of non-consensual deepfake intimate images of six individuals, and for failing to comply with removal notices and remedial directions issued by the eSafety Commissioner.

Key Points

1. First penalties under the Online Safety Act

This is the first time civil penalties have been imposed under the Act, making it a landmark enforcement case.

The Commissioner sought both declarations and penalties, with the Court emphasising deterrence as its guiding principle.

2. Deepfakes squarely captured

The Court confirmed that non-consensual deepfake intimate images fall within the Act’s prohibition on posting “intimate images” without consent.

Importantly, it rejected Rotondo’s submission that only defamatory or “social media” posts should be captured.

3. Regulatory teeth and enforcement

Rotondo received notices under the Act but responded defiantly (“Get an arrest warrant if you think you are right”) before later being arrested by Queensland Police on related matters.

His lack of remorse and framing of deepfakes as “fun” aggravated the penalty.

4. Platform anonymity

Although the Commissioner did not object, the Court chose to anonymise the name of the website hosting the deepfakes — reflecting a policy judgment not to amplify harmful platforms.

That said, the various newspapers reporting on this story all revealed the website’s address, but noted it has now been taken down.

IP Mojo is choosing not to reveal that website.

5. Civil vs criminal overlap

Alongside the civil penalties, the Court noted criminal charges under Queensland’s Criminal Code.

This illustrates how civil, regulatory and criminal enforcement can run in parallel.

Why It Matters

  • For regulators: This case confirms the Act has teeth. Regulators can secure significant financial penalties even where offenders are self-represented.

  • For platforms: The Court’s approach signals that services hosting deepfakes are firmly in scope, even if located offshore.

  • For the public: The judgment highlights the law’s adaptability to AI-driven harms — and sends a clear deterrence message.

  • For practitioners: Expect more proceedings of this kind, particularly as the prevalence of AI-generated abuse grows.

by

Puma v Tiger Woods: The Cat Fight Over a Leaping Logo

When Tiger Woods launched his new Sun Day Red brand with TaylorMade, it came with a sleek “leaping tiger” device mark. Puma — owner of the iconic leaping cat logo used since 1968 — wasn’t impressed.

In Puma SE v Sunday Red LLC [2025] ATMO 197, Puma opposed two applications for Sun Day Red’s logos under s 44 (deceptive similarity) and s 60 (reputation) of the Trade Marks Act 1995 (Cth).

Puma argued that its feline reputation was so strong that Tiger’s tiger would cause confusion. Evidence showed Puma’s long history in sportswear and golf sponsorships, and even social media chatter about the similarity between the marks.

But the Delegate wasn’t convinced. While Puma has huge global clout, the marks weren’t substantially identical, and the context — Tiger Woods’ golf-focused apparel — made confusion unlikely. On s 60, Puma’s reputation was undeniable, but not enough to block Sun Day Red given the clear differences in branding.

👉 Outcome: Sun Day Red’s trade marks proceed to registration.

Why it matters

  • Celebrity branding v legacy sportswear: Fame cuts both ways. Tiger Woods’ global profile helped counter Puma’s reputation argument.

  • Logos need more than a vibe: Even if two marks both feature “leaping animals,” registrability turns on overall impression, not loose thematic overlap.

  • Strategic lesson: Oppositions based on reputation need strong evidence of likely deception or confusion, not just brand prominence.

This is a textbook case of two power brands colliding — and a reminder that in trade mark law, even a Puma can’t always outrun a Tiger.

by

The Art of Disclaimers: Jacksons v Jackson’s Art Supplies (No 2)

When two businesses with nearly identical names lock horns, things usually come down to trade marks, passing off, and reputation.  But in Jacksons Drawing Supplies Pty Ltd v Jackson’s Art Supplies Ltd (No 2) [2025] FCA 1127, the real fight was over disclaimers, pop-ups, sticky banners, and user attention spans.

Yes, really. Welcome to the future of injunctive relief.

The Backdrop: Two Jacksons, One Internet

  • Jacksons Drawing Supplies (JDS) is the long-standing Australian art supply brand.

  • Jackson’s Art Supplies (JAS) is a UK giant with a strong online presence.

When JAS launched its Australia-specific subdomain (jacksonsart.com/en-au), it didn’t just sell paints and brushes — it displayed Australian flags, quoted in AUD, listed an Adelaide warehouse, and even had an Aussie phone number. To many customers, it looked like the local Jacksons.

The Court (in an earlier decision) held that this conduct contravened s 18 and s 29 of the ACL and amounted to passing off.

Round Two: The Relief Hearing

The question was: what form should the non-pecuniary relief take?

JDS wanted a sticky header disclaimer on every page (always visible). JAS wanted a one-off pop-up disclaimer (dismiss it once and never see it again).

The Federal Court, armed with expert evidence on digital attention, split the difference.

Attention Science Hits the Federal Court

This case is remarkable for its reliance on attention science experts:

  • Michael Simonetti (website developer & SEO expert)
    Warned about “banner blindness”: users ignore sticky headers and disclaimers that look like ads.

  • Dr Karen Nelson-Field (global expert on omnichannel attention science)
    Explained that pop-ups trigger active attention because they interrupt the browsing experience. Sticky headers, by contrast, fade into the background.

  • Professor Mingming Cheng (digital marketing & SEO)
    Highlighted that hyperlinking to JDS’s site could affect search engine algorithms and reinforce associations between the two brands.

The Court accepted that no disclaimer format guarantees it will be read, but opted for the solution most likely to cut through.

The Court’s Orders

Justice Jackson ordered that JAS can’t operate its Australia-specific site (or any site with Australian characteristics) unless it shows a disclaimer:

“Please note: this website is not affiliated with the Australian company Jacksons Drawing Supplies Pty Ltd or its website jacksons.com.au.”

The disclaimer must:

  • Pop up every time a user starts a new browser session, blocking the site until acknowledged.

  • Also appear at the bottom of each page (non-sticky, same size as body text).

  • Be clear, prominent, and legible.

  • Not include any hyperlink to JDS’s site (too much risk of SEO crossover and confusion).

No requirement for phone sales, social media, or ads — because the misrepresentation arose via the website itself.

No Sticky Business

JDS’s sticky header idea was rejected as:

  • Too intrusive, especially on mobile devices.

  • Likely to be ignored due to banner blindness.

  • Damaging to user experience with little benefit.

Pop-ups, despite being annoying, were judged the least-worst option.

Costs: Calderbank Offers Bite Back

The Court also tackled costs.

  • JDS was successful overall, but lost against the third and fourth respondents.

  • JAS had made Calderbank offers (including restricting sales into JDS’s “core markets” and paying a small sum).

  • The Court held JDS was not unreasonable to reject them — the offers didn’t resolve the cross-claim, lacked mutuality, and wouldn’t necessarily prevent consumer confusion.

The result?

  • JDS gets costs against the first and second respondents (with a 15% discount).

  • The third and fourth respondents get indemnity costs from a certain date.

Why This Case Matters

This decision is a practical playbook for how courts may deal with online misrepresentation and passing off in 2025 and beyond:

  1. Disclaimers must do more than exist — they must grab attention. Passive banners won’t cut it.

  2. User experience is relevant — remedies must be proportionate and fair, not ruin the site.

  3. Hyperlinks aren’t a free fix — they can create new risks of association in both consumers’ minds and search engine algorithms.

  4. Attention science is evidence — expert testimony on human behaviour online now shapes equitable relief.

  5. Calderbank strategy remains vital — but offers must be clear, mutual, and genuinely address the issues at stake.

Takeaways for Brand Owners

  • Global websites need local strategy. If you’re running an AU subdomain, check your disclaimers and branding.

  • Disclaimers aren’t window dressing. Courts will look at how they’re delivered, not just what they say.

  • Attention matters. Evidence from digital marketing and psychology can sway the outcome.

  • Settlement strategy is as important as trial strategy. Get your Calderbank offers right.

Bottom line: The Federal Court has signalled that in the age of pop-ups, banner blindness, and Google algorithms, effective remedies must be technologically and behaviourally savvy. For IP lawyers and brand managers, Jacksons v Jackson’s is a reminder that protecting reputation online requires more than just words — it requires understanding how consumers really pay attention.

by

Australia’s courts are no longer sitting on the sidelines of the AI debate. Within just a few months of each other, the Supreme Courts of New South Wales, Victoria, and Queensland have each published their own rules or guidance on how litigants may (and may not) use generative AI.

The result? A patchwork of approaches — from strict prohibition to principles-based guidance to pragmatic policy.

NSW: Rules with Teeth

The NSW Supreme Court’s Practice Note SC Gen 23 is the most prescriptive of the three.

  • Affidavits & evidence: AI must not be used to generate affidavits, witness statements, or character references. Each must disclose that no AI was used.

  • Written submissions: AI assistance is permitted, but every citation and authority must be personally verified.

  • Confidential material: Suppression-protected or subpoenaed docs must not go near an AI tool unless strict safeguards exist.

  • Experts: AI use in expert reports requires prior leave of the Court, with detailed disclosure obligations.

This is a black-letter approach: firm rules, mandatory disclosures, and penalties if ignored.

Victoria: Trust and Principles

The Victorian Supreme Court Guidelines (2025) are principles-based.

  • Disclosure of AI-use is encouraged: Especially for self-represented parties, transparency helps judges understand context.

  • Cautions are flagged: Generative AI can be inaccurate, out-of-date, incomplete, jurisdictionally inapplicable, or biased.

  • Responsibility is clear: Lawyers remain fully accountable for accuracy and proper basis. “The AI made me do it” is no defence.

  • Judicial use: Courts confirm AI is not to be used to prepare judgments or reasons.

It’s a trust-but-verify model, leaning on professional responsibility rather than outright bans.

Queensland: Pragmatic First Step

The Queensland Supreme Court AI Guidelines (2025) (which we covered in yesterday’s IP Mojo post) sit somewhere in the middle.

  • The tone is more pragmatic, focused on practicalities like accuracy, confidentiality, and proper verification.

  • The scope is less prescriptive than NSW, but more directive than Victoria.

  • The positioning signals that AI is already here, but stresses that obligations of candour and accuracy remain unchanged.

Qld’s approach reads more like a policy statement than binding rules — but it makes clear that AI use is under judicial scrutiny.

A Timeline of Moves

  • NSW: First issued SC Gen 23 in Nov 2024 (updated Jan 2025, effective Feb).

  • Victoria: Released guidelines in early 2025.

  • Queensland: Followed in Feb 2025 with its policy framework.

So while NSW and Victoria were the early movers, all three now have frameworks in play.

Three States, Three Philosophies

State Approach Key Features
NSW Prescriptive “hard law” Strict bans on affidavits/witnesses, leave required for experts, mandatory disclosure
Victoria Principles-based “soft law” Encourages disclosure, flags risks, trusts practitioner responsibility
Queensland    Pragmatic policy Practical guidance, verification and accuracy focus, less formal but watchful

Why This Matters

For practitioners, this divergence isn’t academic:

  • Forum-specific compliance is now a reality — what’s permissible in Brisbane may be prohibited in Sydney.

  • Harmonisation vs patchwork: Will the states converge over time, or continue down separate paths?

  • Strategic implications: Could litigants engage in forum shopping if one jurisdiction feels more AI-friendly?

One thing is clear: Australian courts are acting fast, and the rules of the litigation game are being rewritten — jurisdiction by jurisdiction.

by

From ChatGPT hallucinations to deepfakes in affidavits, Queensland’s courts have drawn a line in the sand.

Two new guidelines, released on 15 September 2025, map out how judges and court users should (and shouldn’t) use AI in litigation.

Two Audiences, One Big Message

Queensland is the latest Australian jurisdiction to publish formal, court-wide rules for generative AI – and it hasn’t stopped at one audience.

  • Judicial Officers: The first guideline is aimed at judges and tribunal members. It stresses confidentiality, accuracy, and ethical responsibility, and makes clear that AI must never be used to prepare or decide judgments.

  • Non-Lawyers: The second is written in plain English for self-represented litigants, McKenzie friends, lay advocates and employment advocates. It’s blunt: AI is not a substitute for a qualified lawyer.

Together, they show the courts know AI isn’t a future problem — it’s already walking into the courtroom (and it’s not hiding under the desk).

What the Courts Are Worried About

The guidelines read like a checklist of every AI-related nightmare scenario:

  • Hallucinations: Fabricated cases, fake citations, and quotes that don’t exist.

  • Confidentiality breaches: Entering suppressed or private information into a chatbot could make it “public to all the world”.

  • Copyright and plagiarism: Summarising textbooks or IP materials via AI may breach copyright.

  • Misleading affidavits: Self-reps relying on AI risk filing persuasive-looking documents that contain substantive errors.

  • Deepfakes: Courts warn of AI-generated forgeries in text, images and video.

The judicial guideline even suggests judges may need to ask outright if AI has been used when dodgy submissions appear — especially if the citations “don’t sound familiar”.

Consequences for Misuse

The courts aren’t treating this as academic theory. Practical consequences are built in:

  • Costs orders: Non-lawyers who waste court time by filing AI-generated fakes could be hit with costs.

  • Judicial oversight: Judges may require lawyers to confirm that AI-assisted research has been independently verified.

  • Expert reports: Experts may be asked to disclose the precise way they used AI in forming an opinion.

That’s real accountability — not just “guidance”.

Why IP Lawyers Should Care

For IP practitioners, one section stands out: the copyright and plagiarism warnings. Both sets of guidelines caution that using AI to re-package copyrighted works can infringe rights if the summary or reformulation substitutes for the original.

This matters for more than pleadings. It cuts across creative industries, publishing, and expert evidence. Expect to see copyright creeping into arguments about how AI-assisted evidence is prepared and presented.

The Bigger Picture

Queensland now joins Victoria and NSW in representing Australia’s formal approach to use of AI in the courtroom.  Courts in the US, UK and Canada have already started issuing AI guidance. Australia now joins the global conversation on how to balance innovation, access to justice, and the integrity of the judicial process.

For lawyers, the message is simple: use AI carefully, verify everything, and never outsource your professional responsibility. For litigants in person, the message is even simpler: AI is not your lawyer.

IP Mojo Takeaway

Queensland’s twin AI guidelines are a watershed moment. They bring generative AI out of the shadows and into the courtroom spotlight.

And whether you’re a judge, a barrister, or a self-rep with a smartphone, the new rules are clear: if you use AI in court, you own the risks.

At the time of publishing this post, you can find the guidelines here and here.