Australian Court Holds That Use of a Corporate Logo for Purposes of Engaging in a Public Campaign Amounts to Mostly Fair Dealing

Australia's Copyright Act allows for various "fair dealing" defenses that set out defined categories of acceptable uses of copyrighted work. These uses include research or study, criticism or review, parody or satire, reporting the news, and provision of legal advice. The Federal Court of Australia's recent application of the fair dealing defenses in AGL Energy Limited v Greenpeace Australia Pacific Limited [2021] FCA 625 illustrates how and when such a defense might be applied. In considering the fair dealing defense here, the court remarked that copyright is meant to protect the owner's interest in an artistic work, not the copyright owner's reputation.

Greenpeace Australia Pacific Ltd. ("Greenpeace"), a not-for-profit organization known for its campaigns advocating for initiatives to protect against climate change, launched a campaign against AGL Energy Ltd. ("AGL") to expose what Greenpeace describes as AGL's "greenwashing" by promoting itself as a leading investor in renewable energy. AGL is a provider of gas, electricity, and telecommunications services throughout Australia. Releasing data composed of more than 400 of Australia's largest greenhouse gas emitters, the Clean Energy Regulator, a government body responsible for decreasing carbon emissions in Australia, named AGL as Australia's largest emitter accounting for about 8% of Australia's total greenhouse gas emissions, more than double the next highest emitter.

Greenpeace used AGL's logo and trademarks in a public campaign to draw attention to AGL's emissions in an effort to gather public scrutiny to pressure AGL to close its coal-burning power stations by 2030. Greenpeace's campaign featured AGL's logo accompanied by slogans such as "Australia's Greatest Liability," "Generating Pollution For Generations," and "Leaving A Mess For The Next Generation." AGL brought suit in the Federal Court of Australia, claiming that Greenpeace's use of AGL's logo in a calculated campaign aiming to make the brand "toxic" amounted to trademark and copyright infringement.

AGL's trademark infringement claims were rejected in whole because it failed to prove that Greenpeace's conduct amounted to "use as a trademark." The court reasoned that consumers viewing the ads, posters, social media posts, or website would not perceive Greenpeace as promoting or associating with any goods or services by reference to AGL's mark. Rather, it is clear that the conduct was negatively portraying AGL as the subject of criticism.

As for the copyright claims, the court considered and partially accepted Greenpeace's argument that its use of AGL's logo was protected by the fair dealing defense afforded by the Australian Copyright Act. Specifically, the court held that AGL's use of the logo on online banner advertisements, street posters, certain social media posts, and a website all fell within the meaning of "parody or satire," considering the mimicking look of a corporate message with AGL's logo accompanied by an obviously noncorporate message. Reasoning that this juxtaposition would flag a viewer that this was a satirical message, the court reasoned that the defense was not hindered just because Greenpeace may have another motive behind the campaign. Moreover, the court found the use was fair, as no sensible reader would confuse that AGL is the object of the message, not the author, and does not endorse it.

But the court found that Greenpeace's other uses, including photographs of placards and certain social media posts, did not fall within any satire or parody safe harbor, due to the lack of any juxtaposition or any identifiable irony, sarcasm, or ridicule. Likewise, these uses were not excused under the fair dealing defenses for purposes of criticism or review. While the court declined to award damages, it did grant injunctive relief against the uses that were found to be outside the scope of the fair dealing defenses.

From the mixed result of this case, holding that some of Greenpeace's use fell under the fair dealing defense while others failed, litigants may experience some unpredictability in this space. Brand owners should be vigilant and continue to protect logos from unauthorized use while keeping in mind the possibility and application of fair dealing defenses. Others considering the use of a third-party mark should carefully consider whether that use falls within an established safe harbor in the applicable jurisdiction before proceeding.

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