January 24, 2022

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Trademark infringement in the case of AGL v Greenpeace Australia Pacific Limited

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Image source – https://bit.ly/3hP0qbo

This article is written by Ananya Singh, pursuing a Diploma in Intellectual Property, Media, and Entertainment Laws from Lawsikho.com.

This article has been published by Shoronya Banerjee.

Table of Contents

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This article will cover the Australian climacteric case of AGL Energy Limited v. Greenpeace Australia Pacific Limited [2021] to understand what constitutes trademark infringement. AGL sued Greenpeace for allegedly infringing its copyright and trademark pertaining to posters made by Greenpeace with AGL’s logo in it. Greenpeace utilised various visual media on different platforms using, inter alia, AGL’s logo with the tagline ‘Australia’s Greatest Liability.’

As we know, intellectual property is one of the significant vital assets of an organisation, and it only makes perfect sense that companies go an extra mile to stop people or entities from infringing their intellectual property. The case study of AGL v. Greenpeace is a perfect example to understand the contours of fair dealing in copyright infringement, and what constitutes criticism or review and parody or satire, and the scope of trademark registration. 

To give you a brief background, following the release of a report commissioned by Greenpeace raising concerns about AGL’s ongoing operation in its coal-burning power stations vis-a-vis its commitment to renewable energy targets, Greenpeace launched an advertising campaign in May 2021, on multiple platforms targeting AGL. These advertisements mimicked the visuals of AGL’s advertisements with tweaked taglines like “Generating Pollution For Generations” and “Still Australia’s Biggest Climate Polluter.” The advertisements used AGL logo mockingly modifying it by referring AGL as “Australia’s Greatest Liability.” 

The advertisements used the AGL logo, mockingly modifying it by referring to AGL as , SEO, Wordpress Support & Insurance, Mortgage, Loans, Legal, Etc Blogs

Image 1: Online Banner Advertisement 

“Australia’s Greatest Liability.” Within two days of launching the advertisement campaign, AGL filed an application in Court against Greenpeace. The Court proceeded with the final hearing of AGL’s claim in less than a month rather than hearing AGL’s interlocutory injunction application. The images of the alleged infringing creatives are attached below:

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Image 2: Street Poster

AGL

It stated that it does not want to prevent Greenpeace from spreading information or disturb the public debate around the issue. However, it seeks to prevent usage of its modified logo in Greenpeace campaign materials. AGL argued that such usage amounts to trademark and copyright infringement since the original logo is a registered trademark and an artistic work under copyright law. In addition, it also argued that its registration, among other things, also covers educational services pertaining to the environment; therefore, Greenpeace cannot use the logo concerning the environment.

Greenpeace

It argued that their use of AGL’s logo could not be considered an infringement because they did not use it as a trademark. In other words, their usage of AGL’s logo was not intended to be accredited as a source identifier of AGL’s goods and services. Moreover, the modified logo fell within the exception of “fair dealing” is a copyrighted work as it was used for purposes of “parody or satire” or “criticism or review.”

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The Australian Federal Court sided with Greenpeace and opined that a trademark could be infringed only if it is used in relation to the goods and services covered by such trademark registration. Accordingly, Greenpeace did not use AGL’ logo concerning its claimed goods and services covered in AGL’s trademark registration. Using a corporate logo for environmental activism or to protest against climate change is reasonably permissible under both trademark and copyright law if that use constitutes a “fair dealing” for the true purpose of criticism or “parody or satire. The Court also stated that the use of corporate logos for criticism or review will not automatically fall under the exception of fair dealing, and due consideration has to be given to intended use on a case-to-case basis. Additionally, “the separate fair dealing exception for the purpose of criticism or review applies to criticism or review of a copyright work, and not to criticism of a person (or organisation) generally.

As per the Federal Court’s view, on looking at Greenpeace’s street posters and banner advertisements, consumers will not see them as advertisements or promotion of AGL’s goods and services. Moreover, Greenpeace used the AGL’s logo to criticize AGL’s products by providing factual information to the Australian consumers on the negative environmental impact in Australia. Under no circumstances would consumers think that Greenpeace was promoting or offering any goods or services of their own by referencing the AGL’s logo.

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 further noted as follows:

  1. The purpose of the impugned works must be objectively considered from the perspective of an ordinary man and how they would construe such impugned works when exposed to it. Subjective considerations such as alleged infringers believing its works to be satire or parody are not determinative. 
  2. Even if the impugned works have multiple purposes such as to engage in satire or parody and simultaneously entertain or to bring about change or do news reporting, the same does not prevent the exceptions satire or parody being applicable. 

Following these observations, the Court found some usage, and not all of it, to fall under these two exceptions. Particularly, Greenpeace materials mimicking AGL’s corporate branding style since 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.”

For other materials that did not form a part of satire or parody, the Court considered the alternate exception of fair dealing for “criticism or review” of copyright works. It held that this exception would not apply to such materials.  

While referring to Section 40 (2) of the Australian Copyright Act, which enumerates certain factors such as:

(a)  the purpose and character of the dealing;

(b)  the nature of the work or adaptation;

(c)  the possibility of obtaining the work or adaptation within a reasonable time at an ordinary commercial price;

(d)  the effect of the dealing upon the potential market for, or value of, the work or adaptation; and

(e)  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 held that there was no copyright infringement and further noted as follows:

  1. Irony, sarcasm, or ridicule are an inherent part of parody and satire, and solely because such work results in damage to the copyright owner do not mean that work can be tagged as “unfair.”  Notwithstanding the evidence that Greenpeace’s internal documents indicated its intention to declare AGL brand as “toxic”, the Court considered it as “colourful language, perhaps rhetorical hype of a type typically used in advertising and also environmental campaigning…that would assist Greenpeace in criticising AGL’s conduct and provoking debate.”  
  2. The nature of the work is the entire corporate logo; Greenpeace using the whole logo (work) without transforming it does not make the use “unfair.” 
  3. Even though AGL’s significant reputation is tied to its logo, unlike trademark, copyright only protects the artistic expression of the logo and not the brand reputation. The harm done to AGL is not because its logo was used but because of the content of the advertisement campaign.
  4. Each advertisement indicated that Greenpeace is the source of such a campaign, and no reasonable, sensible person would see it otherwise.
  5.  Realistically, it seems implausible that Greenpeace would have gotten permission to use work by AGL. 
  6. Greenpeace is a non-profit organization and not a competitor of AGL.

Concerning AGL’s trademark registration for educational services, among other things, the Court held that:

“[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.”

The Court accordingly dismissed the claim for trademark infringement. 

Ordinarily, using the corporate logo in informational material directly works as a source of revenue generation and to generate goodwill and brand value for corporations. On the face of it, such use without permission is copyright infringement unless it squarely falls within the scope of the exceptions, which is decided on a case-to-case basis. As observed in AGL vs. Greenpeace, not all the materials fell within the exception of fair dealing because the intended use did not reflect that. Notwithstanding anything contained to the contrary, copyright will always remain an effective tool to protect and restore brand value and reputation. Suppose any advertising is deceptive or gives misleading and factually incorrect information. In that case, brand owners can claim trademark or copyright infringement, although AGL did not argue this.

  • HOAD, R., ADAMS, K. and WU, M., 2021. Brand-jamming, free speech and satire: Federal Court finds Greenpeace’s use of AGL’s logo is (mostly) fair and darkly humorous – Knowledge – Clayton Utz. [online] Claytonutz.com. Available at: <https://www.claytonutz.com/knowledge/2021/june/brand-jamming-free-speech-and-satire-federal-court-finds-greenpeace-s-use-of-agl-s-logo-is-mostly-fair-and-darkly-humorous> [Accessed 18 November 2021].
  •  Herbert Smith Freehills | Global law firm. 2021. Not all’s “fair dealing” in war and Greenpeace: Federal Court confirms limits of the “parody or satire” exception to copyright infringement. [online] Available at: <https://www.herbertsmithfreehills.com/latest-thinking/not-all%E2%80%99s-%E2%80%9Cfair-dealing%E2%80%9D-in-war-and-greenpeace-federal-court-confirms-limits-of-the-> [Accessed 16 December 2021].
  • Legislation.gov.au.Copyright Act 1968. Available at: <https://www.legislation.gov.au/Details/C2017C00180> [Accessed 21 December 2021].

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