All this talk about Michael Jackson and cases reminds me of a case decided by Tamberlin J about a month ago: Pacific Publications Pty Ltd v Next Publishing Pty Ltd [2005] FCA 625.
Tamberlin J set the scene (at [1], links mine):
Pacific Publications Pty Limited … seeks orders that the respondent, Next Publishing Pty Limited …, be restrained from publishing or distributing a magazine directed to girls between the ages of six and thirteen (“tweens”) by reference to the name “Girl Power” or any similar name. …
Why was Pacific Publications so concerned? Well (at [2]):
Since November 2002, Pacific [Publications] has published, distributed, promoted and sold a monthly magazine entitled “Total Girl”. The words “Total Girl” are the masthead of the magazine. The masthead is almost invariably used in close proximity with the tag line, “no boys allowed”.
As well as providing a convenient excuse for including colour photographs of (inter alia) Delta Goodrem, Mary-Kate and Ashley, Kelly Clarkson, and Hillary Duff (at [11]), Tamberlin J also considered issues of passing off and misleading or deceptive conduct. The pith of the legal merits of the case is I think encapsulated by the following passage (at [95]):
Concepts such as “source”, “publication”, “same stable”, “licence” or “approval” are complex concepts and are probably not considerations that would be important to girls in the six to twelve year old age bracket. The primary interest of such an audience is likely to be to read an attractive, interesting and topical presentation of subjects that are admired by their peer group rather than to consider whether an association exists between “Total Girl” and “Girl Power”.
It was the following passage, though, which caught my eye (at [50]):
I am not satisfied that Mr [Martin] Lindstrom’s evidence in this case can be accepted as expert evidence in relation to the perception of tween girls. It is not based on any identified or specific empiric examinations referred to by him in his material. He claims to be a leading expert with many years of experience, however, the prime nature of this experience is unclear.
This suggests the question—what would it take to be an expert in tween girls? And would one really want to go on oath testifying to the “identified or specific examinations” and the “prime nature of [the] experience” which supported your status as an expert?
As a bonus, the case also contains helpful information for the next time you’re talking to a feminist at a dinner party (at [74], again links mine):
In her first report, Dr [Catherine] Driscoll [a lecturer in the Faculty of Arts, Department of Gender Studies, at the University of Sydney who conducts a course entitled “Gender, Media and Popular Culture”] deals with the history of the expression “girl power”, tracing it back to the “riot grrrl” groups in the North-West of the United States in the late 1980s and early 1990s.
To quote the late Johnny Carson: “I did not know that.”
