Butterfly Pea flower powder is becoming increasingly popular as a 'superfood' product in Australia, and there are lots of sales of the powder made through the Seahorse Industries website. Pippa is keen to maximise the reputation of her brand, so she decides to replace the FLYING PIGEON labels on the packaged Butterfly Pea powder that she sells with her own stickers with the SEAHORSE wording and logo on them. In March 2021, Pippa decides it is time for a website refresh too, and that she wants to try out a different website designer, Mateo, to do the work on the website refresh. Seahorse Industries Pty Ltd engages Mateo to provide his services to refresh the website. As part of that work, Pippa provides Mateo with access to the website files and instructs Mateo to use his Photoshop skills to replace the FLYING PIGEON logos on the photos of the packaged FLYING PIGEON Butterfly Pea powder with the SEAHORSE branding. In April 2021, Zoltan received a cease-and-desist letter from lawyers representing FLYING PIGEON PLC. The domain name is still registered in Zoltan's name. The letter accuses Zoltan of copyright infringement, trade mark infringement and misleading and deceptive conduct on the Seahorse Industries website. Zoltan has not looked at the website he created for Seahorse Industries since late 2020. Zoltan was shocked to see not only the photoshopped images of the FLYING PIGEON photographs, but that numerous changes and alterations had been made to the layout and design of the website, including a " Mateo 2021" next to a distorted version of an image that Zoltan had originally created . Zoltan is very upset and confused. As the popularity of Butterfly Pea flower powder continues to grow, Pippa also decides to try out growing her own Butterfly Pea flower plants. Pippa's mum is a farmer who legitimately purchased seeds for the plant variety registered as "Butterfly Blue" and has been saving seeds from the original crop and propagating her own seedlings. Pippa's mum has given Pippa some of the saved seeds and Pippa has grown those seedlings and started selling the Butterfly Pea flowers she has grown at her market stall. As Pippa has not seen anyone else selling the flowers from the "Butterfly Blue" variety under that name, Pippa applies to register the trade mark BUTTERFLY BLUE for flowers. Whilst visiting another market in April 2021, Pippa lines up to purchase a beer from a craft brewer, Blue Brews. Keen to jump in on the Butterfly Pea flower powder craze, Blue Brews has been brewing a blue coloured beer to sell under the label SEA PONY. This was the first day that Blue Brews had started selling their SEA PONY blue beer. Pippa was shocked to receive a bottle of blue coloured beer labelled SEA PONY, which included this 2-tone sea horse logo: People at that market recognised Pippa and asked her if she had branched out into brewing Butterfly Pea flower beer now. Pippa then went home and looked up the IP Australia trade marks registration database to discover the 2-tone sea horse logo was registered as a trade mark for beers by Blue Brews in August 2019 and that Blue Brews had this month applied for the word trade mark SEA PONY for beers. Pippa consoled herself by making plans to register her design for a seahorse shaped bottle for all kinds of beverages, she had a small batch of samples made up and sold her bubble teas in them at her last market stall and her customers loved them. She knows she'll be able to corner the market for any drinks sold in seahorse shaped bottles.

Question 3

Zoltan comes to see you about the letter he has received from Flying Pigeon PLC, and his subsequent discoveries about the website he created for Seahorse Industries Pty Ltd.

What advice would you provide to Zoltan about what actions he might be able to take against:

a. Seahorse Industries;

b. Pippa; and

c. Mateo.

Question 4 (25 marks)

Pippa comes to see you and ask you to provide your advice on:

a. the likelihood of succeeding in a trade mark infringement claim against the Blue Brews trade marks;

b. if you see any issues with her selling the Butterfly Pea flowers and likelihood of registering the BUTTERFLY BLUE trade mark; and

c. the likelihood of securing design registration for the seahorse shaped bottle.