Legal Advise Essay
FACTS:
1. Maurie was a long-standing dairy farmer and part time amateur inventor. Maurie had witnessed the ebbs and flows of his industry for 30 years. He was particularly intrigued as to how different cattle breeds produced differing levels of cream in milk, and how climatic conditions and seasonal factors could also determine the qualitative milk output.
2. Maurie had often considered that if different varieties of milk could be produced on the farm straight from the cow, and pasteurised on-site, there would be significant savings by eliminating the costs of processors, like Fonterra. Such savings could be passed onto the struggling farmer.
3. One day, while in town to cash his milk cheque (his dairy co-operative continued the quaint practice of issuing weekly cheques to certain milk suppliers), Maurie walked past a café and observed the bewildering varieties of coffee being produced using a seemingly endless plethora of high and low fat milk. An epiphany struck Maurie, and he jotted down formulae and concepts including working drawings on the back of his milk cheque.
4. Excited by the potential of this discovery, Maurie forgot to cash his cheque at the bank. He placed the cheque, including its invaluable notations (on its reverse side), in a safe place (inside an historic glass milk bottle) in his home study.
5. For the next six months Maurie tinkered in his back shed with the ideas he first developed on that fateful day outside the café. He built a machine (not unlike an espresso machine), which was capable of being adapted to a standard milking machine. The invention, which Maurie nicknamed the ‘Trevski’ (an acronym of sorts derived from the registered trademarks ‘Trim’ ‘Rev’ and ‘Skinny’ milk), produced pasteurised milk with differing cream content through variations to water pressure levels and heat. Impressed by his originality in thinking up the name ‘Trevski’, Maurie filed a simple online trade mark application for ‘Trevski’ in respects of Goods – Class 7 – machines and agricultural implements, and Class 29 – milk and milk products.
6. Maurie saw enormous potential in his invention for the dairy industry, particularly farmers, including a whole new distribution process delivering packaged milk (full cream, reduced fat, skim and so on) direct from the farm gate to supermarkets.
7. The design of the ‘Trevski’ incorporated aesthetic visual features not unlike the designs of the Italian homewares giant, Alessi. Maurie’s son, Maurie Junior had not followed his father onto the land, and instead had studied fine arts at university. After graduation, Maurie Junior had scored a job in Alessi’s headquarters in Milan, Italy, and had often sent home Alessi samples to his father by way of Christmas and birthday gifts.
8. After six months of tinkering, Maurie needed to trial the Trevski on a milking herd of at least 200 cows. Maurie had taken the invention over to his neighbour Bill and it was tested for two weeks at Bill’s farm. The working trial was successful in ironing out several technical issues. Maurie had sworn Bill to secrecy, and the two farmers – on the back of another milk cheque – had signed an informal confidentiality agreement. One day, whilst the Trevski was churning out a ‘full cream high calcium’ variety, Bill’s wife brought the local CWA (Country Women’s Association) branch executive (which was coincidentally meeting at their house) to inspect ‘Maurie’s latest wacky invention’.
9. As the members of the CWA branch executive were performing their inspection, the CWA secretary, Myrtle, went inexplicably missing from the group. In fact, she had slipped next door and was fossicking around Maurie’s home office. Maurie was not at home. Upon finding Maurie’s stash of cash and unbanked cheques (including the milk cheque with the annotations on the back as mentioned in paragraphs 3 and 4 above), Myrtle carefully removed these from the old milk bottle in which they were stored and put the cash and cheques inside her handbag. She forged Maurie’s signature endorsing the cheque over to her, and that afternoon, Myrtle banked the monies at the local branch of the McMoo Credit Union.
10. Mark, a teller at McMoo Credit Union, noticed the annotations and drawings on the back of the milk cheque banked by Myrtle as he was tallying up the cash and cheque deposits at the close of business. Curious about what they might mean, he photocopied the back of the cheque and left the copy on his desk overnight.
11. The following day, Mark held a meeting with one of McMoo’s biggest dairy farmer clients, Bev, who was facing serious trouble for exceeding the limit of her McMoo overdraft facility. To lighten the mood, Mark showed Bev the copy of the back of the cheque banked by Myrtle and asked if it made any sense to her. Bev asked Mark if she could take the copy away with her and study it more closely, to which Mark agreed.
12. Within three months, Bev had constructed a machine – based on the copy notations and working drawings from the back of the cheque banked by Myrtle – capable of producing pasteurised milk with differing cream content as an attachment to standard milking equipment. Before long, Bev was fronting Mark at McMoo with smug confidence and a new business plan for merchandising the product, which she planned to call the ‘Bevski’. McMoo Credit Union agreed to fund the proposal.
13. One morning after milking, Maurie went into town and ran into Bev’s husband in the street. After a slow conversation about the weather, Bev’s husband stunned Maurie with the news that Bev was about to launch a new product that would revolutionise the dairy industry. He said that Bev had an appointment with a lawyer the next Monday to ‘make it all legal.’ Maurie heard enough about the ‘Bevski’ to realize that it was almost identical to his ideas and prototype machine, now gathering dust in his back shed.
14. In a daze, Maurie wanders past your office, and makes an appointment next Monday week to seek your legal advice.
Provide a written advice to Maurie senior as to the intellectual property issues raised in this factual scenario, and the specific intellectual property right(s) available to him to secure his interest in the ‘Trevski’.
In advising of the available intellectual property rights, indicate which is (or are) likely to be the most feasible.
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