State Street Global Advisors Trust Company v Maurice Blackburn Pty Ltd (No 2) [2021] FCA 137

Federal Court of Australia

State Street Global Advisors Trust Company v Maurice Blackburn Pty Ltd (No 2) [2021] FCA 137 File number: VID 113 of 2019

Judgment of: BEACH J

Date of judgment: 25 February 2021

Catchwords: CONSUMER LAW – misleading or deceptive conduct under ss 18 and 29(1)(a), (g) and (h) of the Australian Consumer Law – whether conduct was "in trade or commerce" – characterisation of conduct – potentially affected class – discussion of "not insignificant number" criterion concerning the relevant class – relevance of that criterion to "passing off" scenarios invoking such statutory provisions – conflicting Full Federal Court authority – effectiveness of disclaimer COPYRIGHT – artistic work – two-dimensional reproduction of three-dimensional statue – copyright infringement under s 36 of the Copyright Act 1968 (Cth) – whether copyright licence granted for the purposes of s 121 – defence of innocent infringement TORTS – inducing breach of contract – master agreement for display and promotion of the Fearless Girl statue – art agreement for purchase and use of a limited-edition reproduction of the Fearless Girl statue – limitations on artist's rights under the master agreement – breach of master agreement by the artist – interference with contractual relations – knowledge of terms of master agreement – defence of honest and reasonable belief – tort of passing off – relevant reputation TRADE MARKS – trade mark infringement under s 120(1) of the Trade Marks Act 1995 (Cth) – whether the name "Fearless Girl" was used as a trade mark – whether use was in relation to services of the same description as those covered by the Fearless Girl trade mark or closely related goods within the meaning of s 120(2) – whether use was likely to deceive or cause confusion – defence of good faith use under s 122(1)(b)(i)