5. Climate Advocacy, Trade Marks and Copyright

IP can also be a tool that restricts freedom of expression, as owners of copyright and trade mark rights can restrict the use of protected material through infringement claims. Trade marks can be powerful communication tools and expressive use of them in protest materials can strengthen the impact of protest campaigns.^[1] Where trade marks are logos composed of device marks, they can also be protected by copyright.

The recent decision in AGL v Greenpeace illustrates how IP owners might use copyright and trade mark rights to restrict advocacy and protest about climate change but the nature of the rights and exceptions to protection can still permit some use of trade marks and copyright material.^[2] AGL is a well-known supplier of electricity, gas and telecommunications in Australia and registered its AGL logo as a trade mark. Greenpeace incorporated the AGL logo next to the words ‘Australia’s Greatest Liability’ (as a modified AGL logo) into online banners linked to a parody website, posters and materials for its ‘Still Australia’s Biggest Climate Polluter’ campaign protesting AGL’s impact on the environment in the context of concerns that AGL’s advertising constituted ‘greenwashing’.^[3]

AGL brought proceedings against Greenpeace, alleging that this modified AGL logo was substantially identical to the registered AGL logo and infringed its trade mark rights and copyright subsisting in the AGL logo. In Australia, infringement requires that the registered trade mark be ‘used as a trade mark’ to suggest a connection in the course of trade between the user and the goods or services for which the trade mark is registered.^[4] This was not the way that Greenpeace employed the trade mark, so the use was not infringing.^[5] This threshold also applied in relation to other impugned uses of the AGL logo on street posters, mock-up street posters, the parody website, social media, a protest poster image in Greenpeace’s ‘Coal-faced: Exposing AGL as Australia’s biggest climate polluter’ report and placards held by protesters. The court made no finding of trade mark infringement. This is valuable confirmation that expressive use of trade marks that does not involve using them as a badge or origin in relation to a good or service is unlikely to be infringing use.

Still, the trade mark in dispute combined the lower case letters ‘agl’ with five stylised rays, so it also qualified for copyright protection as an artistic work. There are limited exceptions to copyright infringement for fair dealings with copyright works for specific purposes specified in Part III of the Copyright Act 1968 (Cth). The two relevant exceptions in this case were fair dealing for parody or satire, and fair dealing for criticism or review. The court determined that use of the protected artistic work in the modified AGL logo was fair dealing for the purposes of parody or satire, noting that the viewer would understand that the message came from Greenpeace.^[6] However, certain uses that did not make reference to the tagline ‘Australia’s Greatest Liability’, including social media posts and protest placard images, did not constitute fair dealing for the purposes of parody or satire, nor was the Court satisfied that viewers would consider it to be for the purpose of criticism or review, so the exception did not apply.^[7] Although the court granted an injunction in relation to the removal of the limited materials that infringed copyright, it refused to award damages and AGL was ordered to pay 85% of Greenpeace’s costs.^[8]

The emphasis given in the decision on the need for clearly messaging that use of copyright materials is for the purpose of criticism or review provides important guidance for future climate protests.