Exam type question solution

  • Category:
    Law
  • Document type:
    Essay
  • Level:
    Undergraduate
  • Page:
    2
  • Words:
    928

Question 1

The issue is whether Emma can take legal action in order to stop the band from undertaking the tour and whether she can seek damages and share of profits if the band decides to go on a tour. This is after the band found that she had sound problems and decided not to go to any tour with her or make any recording. The band had tried to convince her to change her singing to fit in but she refused.

According to the trademarks Act 1995, the trademark belongs to the group that registered it. The members of the group have a right to benefit from the use of the trademark. It is therefore important for all the people who are part of the trademark to benefit from its use if gains are made. In the case of Frimp Ltd v Jan Barry Whitman. This is after Whitman who was the remaining original member of the band filed for the ownership of the trademark1. It was ruled that Whitman as the original member of the band had a right to register it under its own name as the trademark. In music, the voice of the individuals is considered their intellectual property in Australia.

Application

Emma was not an original member of the band, however she was a band member recruited five years ago. As a result of this, she has become a band member and is required to follow the rules and regulations of the band. Her refusal to abide by the rules of the band may therefore have negative impacts on the band. However, she is part of the band whether she performs or not. Emma does not have any ownership of intellectual property over the band but Bells an original member and the band has. The people who own the intellectual property rights have the powers to make decisions regarding its use2. Her voice would not be part of the band and she cannot claim nay intellectual property.

Conclusion

Emma cannot take any legal action to stop the group from undertaking the tour as she does not have any trademark right on the group. However, as a band member she is entitled for benefits. If the band is to travel for the tour, there will be no infringement of intellectual property as her voice will not be featured anywhere in the performance of the music. As a result of this, she is not entitled to any damages or share of property.

Question 2

The issue is whether Charlotte has a right to legal; action against the Mizuna. This is after she slipped and fell while hurriedly trying to reach a table that was vacant as the café was full. She injured her knee that had undergone surgery and she also injured her wrist. The injuries prevented her from pursuing hockey where she would have been selected to the commonwealth games. She was also has to resist her examinations as she could not do it as a result of the injuries.

In Australia, accidents involving the customer in the premises of a business are known as premises liability. The term slip and fall is used to describe the accidents associated to injuries on someone else property. The slip and fall accidents may be caused by dangerous conditions and hence leading to the injuries3. There is no precise way of determining when a business is legally responsible. This is considering that the customers may at times be careless leading to the fall and injuries. The general rule therefore requires a proof of existence of dangerous condition. A dangerous condition must also present unreasonable risk to a person on the property that the person should not have anticipated under the condition. Other factors includes whether or not the owner knew the condition and negligently failed to correct it. The condition must also have existed over a long period of time. The responsible party must pay for the damages.

Application

Charlotte and her friend hurried when they saw a table being vacated. They were fully aware of the wet floor since it was raining. The presence of a wet floor is an indication that there was a dangerous condition. The owner was also aware of the condition as he admitted it is a common problem during the rainy season, he further admitted that they usually clean it after every 30 minutes. This is an indication that the owner was failed to control the situation as this can be achieved through cleaning. In the case of Rennie Kissun v Coles Supermarkets Australia, the plaintiff was awarded $ 173,260 in damages after slipping in a puddle of water leading to injuries4.

Conclusion

Charlotte has a right to bring legal action against the café since there was an existence of a dangerous condition and negligence by the café which contributed to the accident and injuries.

References

Piccardi, C., & Tajoli, L. (2015). Are Preferential Agreements Significant for the World Trade Structure? A Network Community Analysis. Kyklos, 68(2), 220-239.

Frimp Ltd v Jan Barry Whitman [2009] ATMOS 5

Rennie Kissun v Coles Supermarkets Australia Pty Ltd [2013] NSWDC 134

Nickolas, J. (2013). Business Law, 3rd Edition. New York: John Wiley & Sons Australia.

1
Frimp Ltd v Jan Barry Whitman [2009] ATMOS 5

2
Piccardi, C., & Tajoli, L. (2015). Are Preferential Agreements Significant for the World Trade Structure? A Network Community Analysis. Kyklos, 68(2), 220-239.

3
Nickolas, J. (2013). Business Law, 3rd Edition. John Wiley & Sons Australia.

4
Rennie Kissun v Coles Supermarkets Australia Pty Ltd [2013] NSWDC 134