Albatross Travel Group Pty Ltd v Euro International Travel Pty Ltd

[2003] FCA 1128

FEDERAL COURT OF AUSTRALIA

Albatross Travel Group Pty Ltd v Euro International Travel Pty Ltd

[2003] FCA 1128

ALBATROSS TRAVEL GROUP PTY LTD (ACN 010 565 143) v EURO
INTERNATIONAL TRAVEL PTY LTD (ACN 003 902 636)
Q153 OF 2003

COOPER J
BRISBANE
10 OCTOBER 2003

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q153 OF 2003

BETWEEN:	ALBATROSS TRAVEL GROUP PTY LTD (ACN 010 565 143) APPLICANT
AND:	EURO INTERNATIONAL TRAVEL PTY LTD (ACN 003 902 636) RESPONDENT
JUDGE:	COOPER J
DATE OF ORDER:	10 OCTOBER 2003
WHERE MADE:	BRISBANE

THE COURT DIRECTS THAT:

1.The solicitors for the respondent and the solicitors for the applicant forthwith advise Brochure Flow International Limited of the making of the injunction and the terms of it and that they seek an acknowledgement that it will take no step to further implement the distribution of the material the subject of the present application.

2.There be liberty to apply in relation to the direction above.

3.The applicant file and serve any further material upon which it intends to rely on the hearing of the application for interlocutory relief or on the notice of motion for change of venue by 12.00 noon Monday 13 October 2003.

4.The respondent file and serve any affidavit material upon which it intends to rely by 12.00 noon Wednesday 15 October 2003.

5.The applicant file and serve any affidavit material in reply by 2.15 pm Thursday 16 October 2003.

THE COURT ORDERS THAT:

1.The respondent, whether by itself, its servants, agents or otherwise and specifically by Brochure Flow International Limited be restrained from distributing or otherwise using in trade or commerce a brochure entitled ‘Anzac 2004 Cruise and Gallipoli Tours’ in the form which is exhibit ‘E’ to the affidavit of Euan Maclamroch Landsborough filed 10 October 2003 until 4.00 pm on Friday 17 October 2003.

2.The application be adjourned to 2.15 pm on 17 October 2003 for further interlocutory relief.

3.The respondent’s notice of motion seeking to have the proceedings transferred to the Federal Court of Australia, New South Wales Registry is adjourned to 2.15 pm 17 October 2003.

4.The costs of today be reserved.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q153 OF 2003

BETWEEN:	ALBATROSS TRAVEL GROUP PTY LTD (ACN 010 565 143) APPLICANT
AND:	EURO INTERNATIONAL TRAVEL PTY LTD (ACN 003 902 636) RESPONDENT

JUDGE:	COOPER J
DATE:	10 OCTOBER 2003
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1. This is an application by Albatross Travel Group Pty Ltd, the applicant in these proceedings, for interlocutory injunctive relief arising out of an alleged infringement of copyright which the applicant claims to own in relation to certain travel brochures.  The applicant packages or sells tours to Gallipoli and the Greek and Turkish region.  The respondent is a competing travel agent which has issued a brochure entitled ‘Anzac 2004 Cruise and Gallipoli Tours, Greece and Turkey’ under the name Allsun Holidays (‘Allsun’).

2. The applicant alleges that a substantial part of the material contained in the Allsun brochure has been copied from a travel brochure prepared by Kompas Holidays (‘Kompas’).  The company behind Kompas has been wound up and the applicant has purchased from the liquidator of Kompas all the intellectual property, including copyright, contained in the relevant brochure.  A comparison of the two brochures, that is, the Allsun brochure and the Kompas brochure, and the later brochures of the applicant indicates that certain paragraphs have been taken in their entirety from the brochures in which copyright is claimed by the applicant and reproduced in the same form in the Allsun brochure.

3. Additionally, there are other paragraphs where the substance of the paragraph has been taken, with one or two words omitted or changed to provide a synonym, or an adjective added, but essentially, the language used is the language to be found in the earlier brochures. 

4. The documents are documents in respect of which copyright can exist.  The applicants make out a serious question to be tried that they are the owner of that copyright and entitled under the Copyright Act 1968 (Cth) to its exclusive exploitation.

5. The comparison of the two documents satisfies me that there is a serious question to be tried, that the paragraphs identified in the affidavit material supporting the application for interlocutory relief were directly taken from the earlier brochure, and that there is a serious question to be tried of direct copying of the copyright material.  It is true that in certain respects the formatting and the artwork is different between the two documents.  Nonetheless, in my view, there has been a substantial reproduction, or a serious case to be tried of a substantial reproduction of the commentary in relation to various of the places at which the cruises will call, and the like.

6. That then gives rise to the question of whether or not the balance of convenience is in favour of the making of some interlocutory relief today. 

7. The respondents, by their counsel, submit that there has been unexplained delay sufficient to persuade the Court not to grant the interlocutory relief.  Counsel points to knowledge on the part of the applicants in mid-September that there was in existence a brochure on the respondent’s web-site and in physical form, and that no timely steps were taken at that point in time to seek injunctive relief.

8. It is further pointed out that in or about mid-September 2003, proceedings were issued by the respondent against the applicant in the Federal Court in Sydney, seeking injunctive relief to stop a threat of proceedings being taken for breach of copyright.  It was further submitted that there will be significant financial damage suffered by the respondent if the brochures cannot be distributed.  As the proceedings were filed on 8 October 2003 it was submitted that the respondent has not had a proper time in which to prepare material to defend the application for interlocutory proceedings.

9. In relation to this last matter, I should say that counsel was invited to seek instructions from her client to give an undertaking not to further distribute the materials in order that it might have sufficient time to prepare material to resist the application for interlocutory relief.  Those instructions were not sought, and no undertaking has been offered today.  Indeed, undertakings have been sought by the applicant in the material, and they have been refused.  There is no material to suggest that the Allsun brochure prepared by or on behalf of the respondent was not compiled by directly copying significant parts of the documentation in which the applicant claims copyright.

10. The position in relation to distribution of the documentation is somewhat unclear.  If the documents have not been distributed, then there is good purpose to be served in not allowing for further distribution of what may be infringing material, and so in one sense, if the distribution to date has been minimal, then the respondent ought not to be able to compound an infringement of copyright by being granted time to distribute the infringing material pending the conduct of these proceedings.

11. On the other hand, if the distribution has, for all intents and purposes, substantially taken place, then the documentation is out in the marketplace and the respondent, arguably, will suffer no significant damage by injunctive relief preventing further distribution, it being in a position to solicit orders for overseas cruises in accordance with the brochures already distributed.

12. It bears remembering in this matter that there is no question as to the respondent’s entitlement to compete against the applicant for trade in relation to this tourist market.  The only question is whether or not, in competing, it is obliged to use its own material, rather than copying directly material of the applicant.

13. The material reveals that on 8 October 2003 the applicant became aware of a company, Brochure Flow International Limited (‘Brochure Flow’), which company had received instructions from the respondent to undertake a mass distribution of the brochures in question.  Undertakings were sought from the respondent to obtain its undertaking to instruct Brochure Flow not to distribute the documents pending the court hearing.  That undertaking was not forthcoming.  Brochure Flow were contacted and asked to withhold distribution of the brochures pending the outcome of the court proceedings.  That company indicated that it would only hold distribution when a Court order was made.

14. It seems, as a matter of inference, that the likelihood is that the distribution of these brochures may not be as wide as people think, and that, at the present time, interlocutory relief may well, in fact, have the effect of freezing the situation for a short period of time in order to have the matter further investigated and to give the respondent a chance to put on material in detail, setting out why interlocutory relief should be refused.  Therefore, it seems to me that the balance of convenience is in favour of granting interlocutory relief for a short period of time only, or earlier order.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.

Associate:

Dated:             15 October 2003

Counsel for the Applicant:	R Alldridge
Solicitor for the Applicant:	Roberts and Kane
Counsel for the Respondent:	K Downes
Solicitor for the Respondent:	Tzovaras Legal
Date of Hearing:	10 October 2003
Date of Judgment:	10 October 2003