Australia's largest electricity generator fails to stop Greenpeace from using its logo

In what may be a landmark decision, Australia's largest electricity generator AGL Energy (AXS:AGL) (AGL) lost their battle against Greenpeace (AGL Energy Limited v Greenpeace Australia Pacific Limited [2021] FCA 625), in a final bid to stop Greenpeace from using their logo in a scathing campaign. Greenpeace used AGL’s logo and rejigged the logo to include the slogan “Australia’s Greatest Liability”, alleging that AGL is Australia’s biggest climate polluter.¹ The rejigged logo was used online in banners, posters and social media posts.² The act was designed to pressure AGL to close its coal-fired power stations by 2030 in a bid to reduce its Co2 emissions. 

In May 2021 the Federal Court handed down its judgement, refusing AGL’s attempts to enjoin Greenpeace. AGL claimed that Greenpeace breached trademark and copyright laws for the use of logos of which were “substantially identical”. The Court found that some of the online use of the logo could be considered ‘parody’ material and would therefore be deemed allowable under the ‘fair dealing’ provisions of copyright legislation. Further, it was argued by Greenpeace that the rejigged AGL trademark was not used in trade and its motives were "pure".³ The Court further rejected AGL’s claims for damages.

Justice Burley’s ruling stated:

“Copyright protects the owner’s interest in the artistic work, it does not provide a mechanism for protecting a copyright owner’s reputation…

Although the ultimate purpose of the Greenpeace campaign is to bring about a change in AGL’s environmental conduct, the satirical message in the impugned materials has only the effect of drawing viewers into the debate about AGL’s environmental impact.

It is not the use of AGL’s logo in the campaign that causes damage, but rather the informational message”.

This matter highlights the importance of registering trademarks, understanding the legislation of which governs it and considering the limits of the protection. Here are some preliminary considerations:

Identification

• Identifying your desired trademark, whilst considering its design and possibility of fabrication;
• Choose a trademark that is distinct and has a strong association to your goods and services;
• Consider your future business goals. Your brand may develop and expand over time. Allowing for this can save you costs in the long run.

Conflict checks 

• Conducting a conflict check to identify if there are any trademarks of which are similar or may be considered identical;
•  Keeping the trademark confidential until the trademark has been registered with Intellectual Property Australia;
• Consider that unless you register internationally, your registered protections will only protect your trademark in Australia. It may be worthwhile conducting searches internationally to ensure if your business expands you can also provide your goods and services to other countries.

Conclusion

Initial consideration of your logo and its design may be paramount to its success. Lavan can assist you with the points mentioned above or any queries you have in relation to trademarks. AGL v Greenpeace shows us that a trademark can be rejigged, so long as the Court deems the act to be done in “fair dealing” and that it is not being used in a trade context. Yet, ensuring that your trademark is registered will provide your business with a better chance of protection from such an event.

Lavan comment

Lavan can assist you with trademark applications and assessing if your trademark may be considered similar to another mark on the register.

If you require advice on any matters relating to trademarks, do not hesitate to contact Iain Freeman.