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Scott Coulthart

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Energy Drinks, Trade Mark Battles and a Bunch of Bull

If there’s one thing Red Bull hates more than caffeine-free soft drinks, it’s brand drift. And the latest target of its energy-charged enforcement? A would-be beverage mark from China: SeaBull.

In a decision handed down on 5 June 2025, a delegate of the Registrar refused Shandong Fokun Investment Co’s SeaBull trade mark application — finding it deceptively similar to Red Bull’s registered trade marks under s 44 and reg 4.15A of the Trade Marks Act 1995.

The result? SeaBull joins the long list of Red Bull casualties. When it comes to any other “bull” in the beverage ring, Red Bull’s horns are always up.

The trade mark at issue was the simple word mark SeaBull applied for by Shandong Fokun Investment Co., Ltd on 10 November 2022 in class 32 for non-alcoholic drinks including energy drinks.

The applicant claimed “marine extract” inspiration for the name and tried to distance itself from any reference to Red Bull.

Nice try.

Red Bull’s opposition strategy was as charged as their drinks:

  • Reputation: Global market leader, sold in 174 countries, with a dominant presence in Australia since 1999.

  • Evidence: Brand Finance rankings, Aussie revenue and market share stats, and an empire of media assets — from Red Bull Racing to Red Bull Records.

  • Registrations: Relied primarily on IR 1566986 — a stylised BULL mark registered for Class 32 beverages.

The delegate found that, although the competing marks were not substantially identical:

“The suffix ‘Bull’ is identical in substance… aurally, it comprises one of only two syllables… visually, the word ‘Bull’ is emphasised.”

While the addition of the word Sea tried to add a salty twist, it didn’t do enough to dilute the central BULL impression. The delegate found:

  • Consumers are likely to read it as Sea + Bull (not a singular new word).

  • “Bull” remains the essential, memorable element.

  • Conceptually, SeaBull still evokes the idea of a bull — not something distinct enough to overcome the similarities.

The outcome: Real and tangible risk of confusion → Ground under s 44 established.

The applicant didn’t bother to show up to the hearing and didn’t provide evidence of honest concurrent use, prior use, or other extenuating circumstances. That made the path to refusal even smoother.

It’s difficult to win a case when you don’t adduce any evidence and don’t show up – just saying …

Red Bull won the case and, of course, received an order for its costs too.

🧠 IP Mojo Takeaways

  • Adding a prefix won’t save you if the remaining mark is dominant and matches a well-known trade mark.

  • Red Bull’s enforcement strategy isn’t just for copycats — even marginal similarities to the word BULL in Class 32 can trigger a full opposition.

  • For global brands, consistent evidence of market presence, brand diversification, and registered rights are still the gold standard in trade mark opposition proceedings.

In the end, the only thing SeaBull gave Red Bull was another notch on its IP enforcement belt. For smaller beverage players looking to carve out their own brand, the message is clear:

Don’t poke the bull.

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DMCA Abuse, Deleted Evidence and Damaged Credibility

In C21 Pty Ltd (Trustee) v Hou (No 6) [2025] FedCFamC2G 927, Judge Manousaridis handed down a strongly worded decision marking the latest chapter in a copyright enforcement saga — and it’s not one Mr Hou will be pleased with.

The case delivers a clear warning about the misuse of takedown procedures, destruction of evidence, and strategic dishonesty in IP disputes.

The Story So Far

C21, a real estate agency and video producer, had previously succeeded in proving that Mr Hou had infringed copyright in a range of marketing videos and photographs. The current decision dealt with the consequences: what additional orders should flow from the infringements — and how Mr Hou’s subsequent conduct should influence those outcomes.

DMCA Misuse

One of the key issues was Mr Hou’s deliberate use of DMCA takedown notices to get C21’s legitimately owned videos removed from YouTube. Despite prior court findings that C21 owned the copyright in those materials, Mr Hou sent notices claiming infringement — knowingly and falsely asserting he was the rights holder.

Judge Manousaridis held that these takedown notices were issued:

  • With no lawful basis;

  • In a continuing effort to damage C21’s business;

  • And in knowing contradiction to the findings in earlier proceedings.

Deleted Evidence

Equally concerning was Mr Hou’s deletion of thousands of emails, including emails that may have contained information relevant to the proceedings. The Court accepted that this was done:

  • After the proceedings had commenced;

  • With knowledge of the likely relevance of those materials;

  • And without any acceptable explanation for their destruction.

This led to adverse inferences being drawn about the deleted material.

Additional Damages and Costs

Given the flagrancy of the infringement and the subsequent conduct:

  • The Court awarded additional damages under s 115(4) of the Copyright Act;

  • Compensatory damages were set at $4,200;

  • Additional damages were calculated at $17,000, taking into account Mr Hou’s conduct and the need for deterrence;

  • Full costs were awarded to C21 on a standard basis.

Main Takeaways

The decision is a powerful reminder that:

  • Copyright enforcement tools like DMCA notices must not be weaponised — false claims are not just unethical, they’re legally risky;

  • Deleting relevant evidence mid-litigation can be just as damaging to your case as the infringement itself;

  • Courts take reputational harm and procedural abuse seriously, and will respond with enhanced penalties.

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Ready, Set, Comply: Queensland’s IPOLA Reforms Launch 1 July 2025

This July marks a pivotal moment for Queensland public sector entities, agencies, and their contractors. The Information Privacy and Other Legislation Amendment (IPOLA) Act 2023 comes into full effect from 1 July 2025, ushering in sweeping updates to Queensland’s Information Privacy Act 2009, Right to Information Act 2009, and the rules governing data-breach notifications.

Let’s break it down.

1. Unified Access Rights & RTI Overhaul

What’s Changing:

  • As of 1 July, Queensland merges personal and non-personal document access into a single, unified right under the RTI Act.

  • Expect streamlined procedural rules: revised timeframes, adjusted decision-maker roles, and consolidated fees.

  • New requirements for disclosure logs and proactive release of information also come into force.

Why It Matters:

  • RTI applicants apply once—and agencies can’t dodge questions by splitting personal and non-personal requests.

  • Agencies must refresh policies, train staff, and implement systems that can handle integrated workflows.

  • Transparency expectations heighten. Agencies will be judged not just on compliance, but also disclosure culture.

2. Queensland Privacy Principles (QPPs) & Binding Codes

What’s Changing:

  • A fresh suite of 12 Queensland Privacy Principles takes effect—covering collection, disclosure, accuracy, retention, security, and more.

  • Binding QPP Codes can be issued by the Information Commissioner.

  • Importantly: contractual obligations with service providers (e.g., cloud, IT, data analytics) must now include binding QPP compliance clauses.

Why It Matters:

  • IT contracts across private and public sectors need rewriting to mandate QPP compliance.

  • Outsourced services—especially those involving personal data—must adhere to QPP requirements in practice, not just in documentation.

3. Mandatory Notification of Data Breach (MNDB) Scheme

Note: While the broader IPOLA reforms kick in July 2025, the MNDB requirement for local governments is delayed until July 2026.

What’s Happening Now:

  • State government Agencies adopt MNDB notifications from July 2025.

  • Local governments have an additional year to prepare.

Why It Matters:

  • MNDB templates, policies, and flowcharts from OIC are now live and ready.

  • All entities need clear internal breach response tech and training—or risk non-compliance.

  • Local councils have a 12-month window to align with the Scheme before 2026 rollout.

4. Training & Resources at the OIC

The Office of the Information Commissioner (OIC) has curated an extensive IPOLA onboarding program:

  • Stage 1 Awareness sessions (Aug–Sep 2024), attended by 1,000+ staff across 19 venues.

  • Stage 2 Build‑Knowledge workshops (Oct 2024–Mar 2025), reaching 3,000+ participants over modules covering MNDB, QPPs, and RTI.

  • Stage 3 Topic‑based training commenced in May 2025—delving into MNDB and RTI templates, including a Local‑Government‑specific workshop on 11 June 2025.

Why It Matters:

  • Poly‑themed, modular, and scenario‑driven sessions (including Q&A panels) are freely available and compressed into SCORM packages—but note: the SCORM kit is only available until 30 June 2025.

  • Agencies should download before then and integrate into internal LMS if you haven’t already—no extensions.

5. Practical Tools & Templates

To smooth your compliance journey, OIC offers (at their website oic.qld.gov.au:

  • Checklists: “Prepare for IPOLA” workbook, Access & Amendment Application checklist.

  • Policy templates: breach policy, eligible data‑breach registers, response plans.

  • Privacy Impact Assessment (PIA) tools: threshold forms, risk registers.

  • Contractor & collection‑notice guides: for binding providers and updating public info notices.

🚨 What You Should Do Before 1 July 2025

For Agencies & Departments:

  1. Download & embed SCORM training content by 30 June 2025.

  2. Deploy team training using Stage 2/3 modules or in-house adaptations.

  3. Revise internal systems for unified access rights, disclosure logs, and fee handling.

  4. Update contracts with QPP compliance clauses for all service providers.

  5. Implement MNDB policies and breach-response tech for July rollout.

For Contractors & Vendors:

  1. Review contracts—you’ll likely be legally required to comply with QPPs by July.

  2. Audit your data systems: implement encryption, retention, and access protocols matching QPPs.

  3. Train staff on breach detection, logging, and your obligations to notify.

For Local Government Entities:

  • Use 2025–26 as a setup year for MNDB readiness. Download checklists, test templates, and tap into OIC’s LG-specific training.

Final Word: Compliance Is Non-Negotiable

Come 1 July 2025, Queensland’s public-facing privacy and information regime becomes holistic:

  • Single RTI access request = one-stop for all documents.

  • QPPs apply across the lifecycle of personal data—including handling by contracted parties.

  • MNDB enforcement begins for state bodies (councils get a 12‑month grace period).

  • Training content won’t be available post 30 June.

The concrete tools, training, and structure are all out now—so aim to have your systems fully aligned before end of June. Delay is not an option.

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YouTube’s Free Pass May Be Up: eSafety Pushes Back on Social Media Carve-Out

The Albanese Government’s plan to restrict under-16s from holding social media accounts is already proving contentious — and now, its one glaring exception has been officially called out. The eSafety Commissioner, Julie Inman Grant, has advised Communications Minister Anika Wells to scrap the carve-out that would exempt YouTube from the new age-gating regime set to kick in this December.

The proposal, which mandates that platforms like TikTok, Instagram, Snapchat, Reddit and X take “reasonable steps” to block account creation by under-16s, currently spares YouTube on the basis that it has a broader educational and health utility. But the Commissioner’s position is clear: if it walks like TikTok and Shorts like TikTok, it’s probably TikTok — and deserves to be regulated accordingly.

YouTube: Too Big to Ban?

Back in November, then-Minister Rowland argued YouTube played a “significant role in enabling young people to access education and health support”, and thus deserved its special treatment. But the eSafety Commissioner’s new advice — now in the hands of Minister Wells — says the data tells a different story.

YouTube isn’t just a fringe player. A recent eSafety survey found it’s used by 76% of 10- to 15-year-olds, making it the dominant platform for that age group. Among kids who encountered harmful content online, 37% said the worst of it happened on YouTube.

In other words, if the aim is to protect children from the harms of social media, YouTube is not just part of the problem — it’s the biggest piece of it.

Functional Similarity, Regulatory Inconsistency

The core of the Commissioner’s argument is that functionality, not branding, should drive regulation. YouTube Shorts mimics the addictive swipe-based short-form video experience of TikTok and Instagram Reels. Carving it out sends mixed messages about the purpose of the law — and creates loopholes large enough for a Shorts binge.

The advice also calls for more adaptable, risk-based rules that focus on a platform’s actual features and threat profile, not how it labels itself. Technology evolves too fast for static category-based exemptions.

But What’s the Threat, Really?

There may be many examples of nanny-state regulation these days – but this isn’t one of them.

YouTube is in this author’s opinion an excellent platform extremely useful and entertaining all at the same time, and that applies to benefits both for adults and under-18s/under-16s.

However, there are also significant dangers for under-16s that can’t be ignored.

In plain terms:

1. Exposure to Inappropriate Content

Even with YouTube Kids and restricted mode, children can still be exposed to:

  • Pornographic or sexually suggestive content (sometimes slipped past filters).

  • Violent or graphic videos (including real-life fights, injuries, or distressing footage).

  • Content promoting self-harm, eating disorders, or suicide (often through seemingly innocuous videos or “coded” messaging).

  • Misinformation or conspiracy theories (e.g., QAnon, anti-vax rhetoric).

These exposures are linked to real psychological harms, especially among younger teens still forming their identity and critical reasoning skills.

2. Contact Risks (Predators & Harassment)

YouTube allows comments, live chat during livestreams, and even community posts — all of which create:

  • Opportunities for unsolicited contact from adults (including grooming behaviour).

  • Exposure to cyberbullying or peer harassment, often via comments.

  • Unfiltered interactions during livestreams — which are harder to moderate in real time.

The eSafety Commissioner sees this as part of a broader “contact harm” risk — it’s not just what kids see, but who can reach them and how they’re targeted.

3. Addictive Design (Shorts, Recommendations)

YouTube’s algorithmic design encourages:

  • Binge-watching and excessive screen time through autoplay and recommendations.

  • Engagement loops in YouTube Shorts (TikTok-style scrollable video snippets).

  • Exposure to more extreme or sensational content the longer a child watches (known as algorithmic “radicalisation”).

This design can disrupt sleep, concentration, and mental wellbeing — particularly in adolescents.

4. Data Privacy & Profiling

YouTube collects vast amounts of user data — even from minors — to personalise recommendations and ads. While Google claims to limit this for users under 18:

  • The eSafety Commissioner is concerned that data-driven profiling may still occur covertly or imperfectly.

  • Kids may also be inadvertently tracked across platforms when logged into a YouTube or Google account.

5. False Sense of Safety

YouTube’s exemption from the new social media rules may give parents the impression it is “safe” or “educational” by default — when, in fact, it often contains the same risks as TikTok or Instagram.

The Commissioner specifically called out that there isn’t sufficient evidence YouTube “predominantly provides beneficial experiences” for under-16s. So the carve-out undermines the purpose of the rules.

In summary, the concern isn’t just about under-16s accessing YouTube, but about the total environment of:

  • Risky content,

  • Risky contact,

  • Addictive design, and

  • Inadequate protective controls.

Risk-Based Reform on the Horizon

The YouTube advice comes as the eSafety Commissioner readies a suite of industry-specific codes targeting harmful online content, including pornography and violent material. New obligations are expected for search engines, hosting services, and telcos — with five more codes in the pipeline. If voluntary industry codes fall short, the Commissioner has flagged she’ll impose mandatory standards before July’s end.

Penalties for breach of these codes — like the new social media rules — could reach $50 million for systemic non-compliance.

What’s Next?

The final decision on YouTube’s exemption sits with Minister Wells, who must table the rules in Parliament for scrutiny. But with pressure now coming from the very regulator tasked with enforcement, and mounting community concern over YouTube’s influence, the carve-out may not survive the next sitting.

The bigger question is whether Australia can strike the right balance between platform accountability, digital literacy, and youth agency — without blunting the tools that help kids learn and connect. In a digital world that resists easy categorisation, risk-based regulation may be the only way forward.

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Fair Use or Free Ride? The Case for an AI Blanket Licence

What if AI companies had to pay for the content they train on? Welcome to the next frontier in copyright law — where inspiration meets ingestion.

When AI companies train their models — whether for music, image generation, writing or video — they don’t do it in a vacuum. They train on us. Or more precisely: on our songs, our blogs, our art, our tweets, our books, our interviews.

They harvest it at scale, often scraped from the open web, with or without permission — and certainly without compensation.

This has prompted an increasingly vocal question from creators and content owners:

Shouldn’t we get paid when machines learn from our work?

The proposed answer from some corners: a blanket licensing regime.

What’s a Blanket Licence?

Nothing to do with bedding – a blanket licence is a pre-agreed system for legal reuse. It doesn’t ask for permission each time. Instead, it says:

You can use a defined pool of material for a defined purpose — if you pay.

We already see this in:

  • Music royalties (e.g. APRA, ASCAP, BMI)

  • Broadcast and public performance rights

  • Compulsory licensing of cover songs in the US

Could the same apply to AI?

What the Law Says (or Doesn’t)

AI companies argue that training their models on public material is “fair use” (US) or doesn’t involve “substantial reproduction” (Australia), since no exact copy of the work appears in the output.

However, copies are made during scraping, and substantial parts are almost certainly reproduced during the training process or embedded in derivative outputs — either of which could pose problems under both US and Australian copyright law.

But courts are still catching up.

Pending or recent litigation:

  • The New York Times v OpenAI: scraping articles to train GPT

  • Sarah Silverman v Meta: use of copyrighted books

  • Getty Images v Stability AI: image training and watermark copying

None of these cases have yet resolved the underlying issue:

Is training AI on copyrighted works a use that requires permission — or payment?

What a Blanket Licence Would Do

Under a blanket licence system:

  • Training (and copying or development of derivatives for that purpose) would be lawful, as long as the AI provider paid into a fund

  • Creators and rights holders would receive royalty payments, either directly or via a collecting society

  • A legal baseline would be established, reducing lawsuits and uncertainty

This would mirror systems used in broadcasting and streaming, where revenue is pooled and distributed based on usage data.

Challenges Ahead

1. Who Gets Paid?

Not all data is traceable or attributed. Unlike Spotify, which tracks each song streamed, AI models ingest billions of unlabeled tokens.

How do you determine who owns what — and which parts — of material abstracted, fragmented, and stored somewhere in the cloud?

2. How Much?

Rates would need to reflect:

  • The extent of use

  • The importance of the material to the training corpus

  • The impact on the original market for the work

This is tricky when a model is trained once and then used forever.

3. Which Countries?

Copyright laws vary. A licence in Australia might mean nothing in the US.

A global licence would require multilateral cooperation — and likely WIPO involvement.

Legal Precedent: Australia’s Safe Harbour and Statutory Licensing Models

Australia’s own statutory licensing schemes (e.g. educational copying under Part VB of the Copyright Act) show that:

  • Lawmakers can mandate payment for certain uses,

  • Even if individual rights holders never negotiated the terms,

  • Provided it’s reasonable, transparent, and compensatory.

But those systems also brought:

  • Bureaucratic collection processes

  • Contentious allocation models

  • Endless legal wrangling over definitions (What is “reasonable portion”? What qualifies as “educational purpose”?)

Expect the same for AI.

Creators and Innovation: A Balancing Act

For creators:

  • A blanket licence offers recognition and payment

  • It helps avoid the current “scrape now, settle later” model

  • It could fund new creative work rather than hollowing out industries

For innovators:

  • It provides legal certainty

  • Encourages investment in AI tools

  • Reduces the risk of devastating retroactive litigation

But if set up poorly, it could:

  • Be exclusionary (if licensing fees are too high for small players)

  • Be ineffective (if rights aren’t properly enforced or distributed)

  • Or be too slow to match AI’s pace

What’s Next?

Australia’s Copyright Act doesn’t currently recognise training as a specific form of use. But policy reviews are under way in multiple countries, including by:

  • The UK IPO

  • The European Commission

  • The US Copyright Office

  • And here in Australia, the Attorney-General’s Department is conducting consultations through 2024–25 on how copyright law should respond to AI

Creators, platforms, and governments are all watching the courts. But if consensus forms around the need for structured compensation, a statutory blanket licence might just be the solution.

Bottom Line

We’ve built AI on the backs of human creativity. The question isn’t whether to stop AI — it’s how to make it fair.

A blanket licence won’t solve every problem. But it could be the start of a system where creators aren’t left behind — and where AI learns with permission, not just ambition.

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What Didn’t Happen (Yet): The Privacy Reforms Still Waiting in the Wings

You could be forgiven for thinking Australia’s privacy law just had its big moment — and it did. But don’t get too comfortable. What we’ve seen so far from the December 2024 amendments to the Privacy Act 1988 (Cth) is just Round 1.

Welcome to the final instalment of our 9-part Privacy 2.0 series.

There’s a long queue of proposed changes that didn’t make it into the latest legislation, many of them quietly simmering in government inboxes, consultation drafts and “agreed in principle” footnotes.

Some of these postponed reforms could reshape the privacy landscape even more profoundly than the current crop. If you’re trying to future-proof your compliance or understand where the law is going next, here’s what to watch.

1. The Small Business Exemption — Still Alive (for Now)

Right now, businesses with an annual turnover under $3 million are generally exempt from the Privacy Act. That’s tens of thousands of data-handling entities with zero formal privacy obligations. The reform process flagged this as outdated — and it’s clear the exemption will eventually go. When it does, thousands of SMEs will be pulled into the privacy net for the first time. It’s not a question of if. It’s when.

2. Controllers vs Processors — Coming Soon to a Framework Near You

Unlike the GDPR(s), Australia’s privacy law still doesn’t distinguish between data “controllers” (who decide the purpose and means of processing) and “processors” (who process data on someone else’s behalf). That distinction brings clarity and proportionality in many overseas regimes. Expect pressure to harmonise with global norms — especially from businesses operating across borders who are tired of legal whiplash.

3. The Right to Object, Delete, Port — Not Yet, But On Deck

Australia still lacks a formal, standalone right to object to certain uses of data, to demand deletion (the famed “right to be forgotten”), or to port your data from one provider to another. These rights — core pillars of the GDPR(s) — have been agreed to in principle, are popular with the public, and would bring us closer to GDPR standards (and make life very interesting for adtech, fintech, and platform businesses).

4. De-Identified Data? Still A Grey Zone

The reform process acknowledged that re-identification of supposedly anonymous data is a real risk — and that de-identified information still needs regulation. But the law hasn’t caught up yet. Watch for future reforms to APPs 8 and 11 that would bring de-identified data into scope and make re-identification attempts a regulatory red flag.

5. Privacy by Design & Mandatory PIAs — Still Optional (for Now)

There was also discussion of codifying “privacy by design” and making Privacy Impact Assessments mandatory for high-risk activities. The idea? Embed privacy into planning, not just cleanup. It didn’t land this time, but expect it to return — particularly as AI, biometric tech and behavioural profiling go mainstream.

Bottom line? This is just the intermission. The Privacy Act is evolving — slowly, but deliberately — toward a framework that looks more like the GDPR(s) and less like its 1980s self. Businesses that treat the current reforms as the finish line are missing the point. The smart ones are already adapting to what’s next.

That’s a wrap on our Privacy 2.0 reform series. If you’ve made it this far, congratulations — you now know more about privacy law than most of Parliament.

Now, go fix your privacy policy — and maybe tell your AI to behave while you’re at it.