Trademark Infringement: Agl V/s Greenpeace Australia Pacific Limited | Brealant

By Author: Alicia owens
Total Articles: 3
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Introduction
Intellectual property is one of a company's most valuable assets, therefore it's only logical that companies will go to considerable efforts to ensure that others do not infringe on it. The case of AGL v. Greenpeace is a good example of how to define fair dealing in copyright infringement, as well as what constitutes criticism, review, parody, or satire, and what trademark registration entails.
Facts of the case
To give you some insight, Greenpeace launched an advertising campaign against AGL in May 2021, following the publication of a research commissioned by Greenpeace that raised concerns about AGL's continued operation of coal-burning power plants in regard to its commitment to renewable energy targets. These ads mimicked the visuals of AGL's ads, with taglines like "Generating Pollution for Generations" and "Still Australia's Biggest Climate Polluter." The AGL logo was parodied in the ads, which referred to it as "Australia's Greatest Liability."
By referring to the corporation as AGL, the campaign parodied the AGL emblem.

Image 1: Online Banner Advertisement
"Australia's ...
... Greatest Liability" is a phrase that means "Australia's Greatest Risk." AGL filed a lawsuit against Greenpeace in court just two days after beginning the ad campaign. Rather than hearing AGL's interlocutory injunction application, the Court proceeded with the ultimate hearing of AGL's claim in less than a month. The following are photos of the allegedly infringing creatives:

Image 2: Street Poster
Arguments made by parties
Petitioner (AGL)
It stated that it did not want to restrict Greenpeace's dissemination of information or the public discourse on the subject. It is, however, attempting to block the use of its new logo in Greenpeace campaign materials. AGL contends that such use constitutes trademark and copyright infringement because the original logo is a registered trademark and an artistic work under copyright law. Greenpeace is prohibited to use the environmental mark because its registration, among other things, covers educational activities relating to the environment.
Defendant (Greenpeace)
It claimed that because they did not use AGL's logo as a trademark, their usage of it could not be considered an infringement. In other words, they did not intend for their use of AGL's emblem to be recognised as a source identification for AGL's goods and services. Furthermore, because it was used for "parody or satire" or "criticism or review," the modified logo fell under the exception of "fair dealing" and is a copyrighted work.
Judgment made by court
Greenpeace prevailed in the Australian Federal Court, which ruled that a trademark can only be violated if it is used in relation to the goods and services protected by the trademark registration. As a result, Greenpeace did not utilise AGL's emblem in connection with the goods and services it claimed were protected by AGL's trademark registration. Under both trademark and copyright law, using a company emblem for environmental activism or to protest against climate change is reasonable acceptable if the use is for the actual purpose of criticism, parody, or satire. The Court further stated that the use of corporate logos for criticism or review does not automatically come within the exception of fair dealing, and that each case must be evaluated on its own merits. "The specific fair dealing exception for the purpose of criticism or review relates to criticism or review of a copyright work, not to criticism of a person (or organisation) in general," according to the law.
Consumers will not see Greenpeace's street posters and banner advertisements as advertisements or promotions of AGL's goods and services, according to the Federal Court. Furthermore, Greenpeace utilised the AGL emblem to attack the company's products by informing Australian consumers about the harmful environmental impact of the company's products. By citing the AGL's emblem, buyers would never believe that Greenpeace was marketing or offering any of its own goods or services.
With respect to Greenpeace usage of modified logo that constituted “parody” or “satire” for the purposes of statutory “fair dealing”,, the Court relied on the cases Pokémon Company International, Inc. v Redbubble Ltd, [2017] and Network Ten Pty Ltd v TCN Channel Nine Pty Ltd and Ors, [2004] and held that “the use of an artistic work for the purpose of parody or satire may be one where the impugned work is used ‘to expose, denounce or deride vice’, often in the context of a humorous or ridiculous juxtaposition.”
The Court added:
The intention of the contested works must be objectively assessed from the standpoint of an average person, as well as how they would interpret such contested works if they were exposed to them. Subjective factors including alleged infringers' belief that its works are satire or parody aren't relevant.
Even if the incriminated works serve various goals, such as satire or parody while also entertaining, bringing about change, or providing news reporting, the exceptions of satire and parody still apply.
Following these observations, the Court determined that some usage falls under these two exceptions, but not all of it. Greenpeace items, in particular, imitate AGL's corporate branding style, like the designs of these materials:
“[j]juxtaposes the AGL corporate branding style with an obviously non-corporate message, creating an incongruity that is striking to the viewer. The ridicule potent in the message is likely to be immediately perceived… Many would see these uses of the modified AGL logo as darkly humorous… AGL is exposed to ridicule by the use of its corporate imagery including by use of the modified AGL logo to convey a message that AGL would not wish to send. Furthermore, the words “Presented by Greenpeace” are positioned closely proximate to the modified AGL logo… The viewer would understand that the message came from Greenpeace[1].”
The Court evaluated the alternate exemption of fair dealing for "criticism or review" of copyright works for other elements that did not form part of satire or parody. This exception would not apply to such items, according to the court.
While referring to Section 40 (2) of the Australian Copyright Act, which lists a number of circumstances, including:
“the purpose and character of the dealing;
the nature of the work or adaptation;
the possibility of obtaining the work or adaptation within a reasonable time at an ordinary commercial price;
the effect of the dealing upon the potential market for, or value of, the work or adaptation; and
in a case where part only of the work or adaptation is reproduced—the amount and substantiality of the part copied taken in relation to the whole work or adaptation.”
The Court found no copyright infringement and added the following:
Irony, sarcasm, and ridicule are all natural parts of parody and satire, and simply because such work causes damage to the copyright owner does not mean it is "unfair." Despite the fact that Greenpeace's internal documents indicated the organization's intention to label the AGL brand "toxic," the Court dismissed it as "colourful language, perhaps rhetorical hype of the type commonly used in advertising and also environmental campaigning...that would aid Greenpeace in criticising AGL's conduct and provoking debate."
The full corporate emblem is the nature of the work; Greenpeace's use of the entire logo (work) without transformation is not "unfair."
Despite the fact that AGL's logo has a substantial reputation, unlike trademarks, copyright only protects the artistic expression of the logo, not the brand's reputation. The harm done to AGL was caused by the content of the commercial campaign, not by the usage of its emblem.
Each advertisement said that the campaign originated from Greenpeace, and no rational, sensible person would believe otherwise.
It appears improbable that Greenpeace would have obtained permission to exploit AGL's work.
Greenpeace is a 501(c)(3) non-profit organisation, not an AGL rival.
The Court found, among other things, that AGL's trademark registration for educational services was valid:
“[I]t is apparent that not every communication of information will amount to ‘education’. Nor does the provision of information about particular topics in the context of a media campaign naturally amount to the provision of ‘education services’ or ‘information and consultancy services’ relating to these things. None of the elements concerning the systematic imparting of instruction or the presence of a curriculum that one might expect to accompany the provision of education services and to fall within the definition of the provision of education services are present. Nor…what is offered by Greenpeace in the context of the impugned conduct should be understood to be in relation to ‘scientific and technological services’ or ‘industrial and research services’ …not satisfied that Greenpeace is using the trademark… in relation to such services.”[2]
As a result, the trademark infringement allegation was dismissed by the court.
Concluding…
Using a company's logo in instructional materials is typically a direct source of revenue generating as well as a way for companies to build goodwill and brand value. Unless it comes squarely within the scope of the exceptions, which is evaluated on a case-by-case basis, such use without authorization is copyright infringement. Not all materials fell within the exception of fair dealing, as stated in AGL vs. Greenpeace, because the intended usage did not reflect that. Regardless of what else is said, copyright will always be a useful weapon for protecting and restoring brand value and reputation. Assume that any advertising is fraudulent or provides inaccurate and misleading information. In that instance, trademark or copyright infringement can be claimed, albeit AGL did not defend this.

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