C21 Pty Ltd (Trustee) v Hou (No 6)
[2025] FedCFamC2G 927
•13 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
C21 Pty Ltd (Trustee) v Hou (No 6) [2025] FedCFamC2G 927
File number(s): SYG 2055 of 2021 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 13 June 2025 Catchwords: INTELLECTUAL PROPERTY – final relief in relation to established causes of action based on copyright infringement, breach of confidence, and breach of s 183(1) of the Corporations Act 2001 (Cth) (Corporations Act) – whether principles relating to springboard injunctions apply to the granting of injunctions in relation to copyright infringement and the granting of injunctions pursuant to s 1324(1) of the Corporations Act – whether the applicant’s disclaiming a claim for copyright infringement based on the three dimensional reproduction of the copyright works is a bar to granting an injunction restraining the two dimensional reproduction of the copyright works and the granting of delivery up orders in relation to two dimensional infringing reproductions of the copyright works - whether in relation to the cause of action based on breach of confidence information held to be confidential is in the public domain such as to warrant at most the granting of a springboard injunction rather than a permanent injunction restraining the use of the information that was held to be confidential – declarations, permanent injunctions, and other orders made – the making of a delivery up order and orders in relation to costs postponed.
INTELLECTUAL PROPERTY – Practice and procedure – whether application for a stay of order for the payment of profit pending the hearing of an appeal should be granted – stay granted on terms that respondents pay part of the profits ordered.
Legislation: Copyright Act 1968 (Cth) s 115(2)
Corporations Act 2001 (Cth) ss 79, 182(1), 183(1), 1317H(2), 1324(1)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 140
Cases cited: C21 Pty Ltd (Trustee) v Hou (No 5) [2025] FedCFamC2G 479
IPC Global Pty Ltd v Pavetest Pty Ltd (No 3) [2017] FCA 82
Mastec Australia Pty Ltd v Trident Plastics (Aust) Pty Ltd (No 3) [2018] FCA 99
Purkess v Crittenden (1965) 114 CLR 164
Smith & Nephew Plc v Convatec Technologies Inc [2014] RPC 22
Streetworx Pty Ltd v Artcraft Urban Group Pty Ltd (No 2) [2015] FCA 140
Watts v Rake (1960) 108 CLR 158
Division: General Number of paragraphs: 55 Date of hearing: 30 May 2025 Place: Sydney Counsel for the Applicant: Mr C McMeniman Solicitor for the Applicant: Gilbert + Tobin Counsel for the Respondents: Mr L Merrick and Mr A Middleton Solicitor for the Respondents: MGA Lawyers ORDERS
SYG 2055 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: C21 PTY LTD ATF THE RAMADAN FAMILY TRUST
Applicant
AND: KATE HOU
First Respondent
HIBI DESIGN PTY LTD
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
13 JUNE 2025
THE COURT DECLARES THAT:
1.On any one or more of 20 August 2021, 22 August 2021, or 15 September 2021, the first respondent infringed the copyright the applicant owns in the RAMA Keycap Design templates, the RAMA Stem templates, and the RAMA Keycap Collaboration templates that are constituted by the data contained in the RAMA Keycap template files listed in Schedule A to these orders (Infringement Table 1), by downloading those files from a drive or drives the applicant controlled to a device or devices the first respondent controlled without the applicant’s permission.
2.From 28 August 2021 to at least August 2022 the first respondent and (from 18 October 2021 to at least August 2022) the second respondent infringed the copyright the applicant owns in the RAMA Keycap Design templates constituted by the data contained in the files listed in Column 1 of the table in Schedule B to these orders (Infringement Table 2) by reproducing substantial parts of that data to create the HIBI Keycap Design templates constituted by the data contained in the files listed in Column 2 of Infringement Table 2, the extent of the similarities between the RAMA Keycap Design templates and the HIBI Keycap Design templates being specified in Column 3 of Infringement Table 2.
3.From 28 August 2021 to at least August 2022 the first respondent and (from 18 October 2021 to at least August 2022) the second respondent infringed the copyright the applicant owns in the RAMA Keycap Design templates by:
(a)creating the HIBI Keycap Collaboration templates constituted by the data contained in the files relating to the collaborations listed in Column 3 of the table in Schedule C to these orders (Infringement Table 3) on the basis of the HIBI Keycap Design templates constituted by the data contained in the files identified in Column 2 of Infringement Table 3, being substantial reproductions of the RAMA Keycap Design templates constituted by the data contained in the files identified in Column 1 of Infringement Table 3; and
(b)creating the HIBI Keycap Collaboration templates constituted by the data contained in the files relating to the collaborations listed in Column 2 of the table in Schedule D to these orders (Infringement Table 4) on the basis of one of the HIBI Keycap Design templates constituted by the data contained in the files identified in Column 2 of Infringement Table 3, being substantial reproductions of at least one of the RAMA Keycap Design templates constituted by the data contained in the files identified in Column 1 of Infringement Table 3.
4.By the first respondent, without the permission of the applicant, engaging in the following conduct while an employee of the applicant, namely:
(a)on 20 August 2021 downloading from one of the applicant’s Network Access Storage servers (NAS server) to a device or devices the first respondent controlled the files referred to by the log of the NAS server for 20 August 2021;
(b)on 22 August 2021 downloading from the applicant’s Google server to a device or devices the first respondent controlled the files comprised in the 43 downloads identified in an email Google sent to the first respondent at 11.36 pm on 22 August 2021;
(c)on 15 September 2021 downloading from the applicant’s Google server to a device or devices the first respondent controlled the files comprised in the 2 downloads identified in an email Google sent to the first respondent at 6.22 pm on 15 September 2021; and
(d)by so doing the first respondent downloaded to a device or devices she controlled or controls information that includes the following information (collectively RAMA Confidential Information):
(i)the data contained within the RAMA Keycap Design template files, the RAMA Stem template files, and the RAMA Keycap Collaboration template files, being the files listed in Infringement Table 1; and
(ii)the RAMA non-template files (as defined in [322] of the reasons for judgment published on 4 April 2025),
the first respondent:
(e)breached the duty of confidence she owed to the applicant not to access or use the RAMA Confidential Information for a purpose other than for the purposes of the applicant’s business, such duty having arisen from the RAMA Confidential Information being confidential to the applicant;
(f)breached the implied term of the first respondent’s contract of employment to serve the applicant with loyalty and fidelity;
(g)breached the fiduciary duties the first respondent owed the applicant not to use her position as employee to benefit or profit herself or some other person to the detriment of the applicant; and not to place herself in the position where her personal interest conflicted with the duties she owed the applicant;
(h)breached the duty s 182(1) of the Corporations Act 2001 (Cth) (Corporations Act) imposed on the first respondent not to make improper use of her position as an employee of the applicant, and thus contravened s 182(1) of the Corporations Act; and
(i)breached the duty s 183(1) of the Corporations Act imposed on the first respondent not to make improper use of information the applicant obtained by use of her position as an employee to gain an advantage for herself or someone else, or cause detriment to the applicant, and thus contravened s 183(1) of the Corporations Act.
5.By the first respondent from around 28 August 2021 to 18 October 2021 on behalf of herself, and from 18 October 2021 to at least August 2022 on behalf of the second respondent:
(a)creating:
(i)the HIBI Keycap Collaboration templates constituted by the data contained in the files relating to the collaborations listed in Column 3 of Infringement Table 3; and
(ii)the HIBI Keycap Collaboration templates constituted by the data contained in the files relating to the collaborations listed in Column 2 of Infringement Table 4,
on the basis of the HIBI Keycap Design templates constituted by the data contained in the files identified in Column 2 of Infringement Table 3, being templates the first respondent created by substantially reproducing the RAMA Keycap Design templates constituted by the data contained in the files identified in Column 1 of Infringement Table 3; and
(b)causing keycaps to be manufactured to the specification of the HIBI Keycap collaboration templates referred to in (a), and selling those keycaps,
the first respondent:
(c)breached the duty of confidence she owed to the applicant not to access or use the data that comprised the RAMA Keycap Design templates constituted by the data contained in the files identified in Column 1 of Infringement Table 3 for a purpose other than the applicant’s business, such duty having arisen from the files being confidential to the applicant;
(d)breached the fiduciary duties the first respondent owed the applicant not to use her position as employee to benefit or profit herself or some other person to the detriment of the applicant; and not to place the first respondent in the position where her personal interest conflicted with her duties and obligation;
(e)breached the duty s 182(1) of the Corporations Act imposed on the first respondent not to make improper use of her position as an employee of the applicant, and thus contravened s 182(1) of the Corporations Act; and
(f)breached the duty s 183(1) of the Corporations Act imposed on the first respondent not to make improper use of information the first respondent obtained by use of her position as an employee to gain an advantage for herself or someone else, or to cause detriment to the applicant, and this contravened s 183(1) of the Corporations Act.
6.By the second respondent, through the first respondent, having engaged in the conduct identified in paragraphs 5(a) and (b) of these orders, and in circumstances where the first respondent controlled the second respondent, the second respondent:
(a)breached the duty of confidence it owed to the applicant not to use the data that comprised the RAMA Keycap Design templates constituted by the data contained in the files identified in Column 1 of Infringement Table 3 for a purpose other than the applicant’s business, such duty having arisen from the files being confidential to the applicant;
(b)was knowingly involved in the first respondent’s breaches of fiduciary duty referred to in paragraph 5(d) of these orders; and
(c)was knowingly involved within the meaning of s 79 of the Corporations Act in the first respondent’s contraventions of s 182(1) and s 183(1) of the Corporations Act.
7.The first and second respondents are liable to account for the profits the second respondent made that are attributable to the second respondent’s sale of the keycaps referred to in paragraph 5(b) of these orders, such profit being $311,956.47.
THE COURT ORDERS THAT:
8.Subject to any delivery up order that may be made pursuant to the exercise of the liberty to apply provided by order 14:
(a)pursuant to s 115(2) of the Copyright Act 1968 (Cth), the first and second respondents, by themselves, their employees, and agents, are permanently restrained, without the applicant’s prior consent or licence given in writing, from:
(i)reproducing or substantially reproducing into two dimensional (2D) form, or communicating to the public in 2D form, all or a substantial part of any of the RAMA Keycap Design templates, the RAMA Stem templates, and the RAMA Keycap Collaboration templates that are constituted by the data contained in the RAMA Keycap template files listed in Infringement Table 1;
(ii)reproducing or substantially reproducing into 2D form any of the:
(A)HIBI Keycap Design templates constituted by the data contained in the files listed in Column 2 of each of Infringement Table 2 and Infringement Table 3; and
(B)HIBI Collaboration templates constituted by the data contained in the files relating to the collaborations listed in Column 3 of Infringement Table 3 and Column 2 of Infringement Table 4; and
(iii)otherwise doing any act comprised in the copyright that subsists in the RAMA Keycap Design templates, the RAMA Stem templates, and the RAMA Keycap Collaboration templates that are constituted by the data contained in the RAMA Keycap template files listed in Infringement Table 1, other than reproduce the templates into a three dimensional form; and
(b)pursuant to s 140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), and s 1324(1) of the Corporations Act, the first and second respondents, by themselves, their employees, and agents, are permanently restrained, without the applicant’s prior consent or licence given in writing, from using all or any part of the RAMA Keycap Design templates, the RAMA Stem templates, and the RAMA Keycap Collaboration templates that are constituted by the data contained in the RAMA Keycap template files listed in Infringement Table 1.
9.The first and second respondents account for the profits of $311,956.47 attributable to the second respondent’s sale of the keycaps referred to in order 7 by the first and second respondents paying to the applicant $311,956.47 together with interest on that amount calculated from 1 July 2023 up to and including 13 June 2025, such interest being $50,490.36.
10.Pursuant to s 1317H(2) of the Corporations Act the first and second respondents pay to the applicant $311,956.47 together with interest on that amount calculated from 1 July 2023 up to and including 13 June 2025, such interest being $50,490.36.
11.Payment of any amount on account of order 9 shall be taken to constitute a discharge of the amounts payable under order 10 to the extent of the payment; and payment of any amount on account of order 10 shall be taken to constitute a discharge of the amounts payable under order 9 to the extent of the payment.
12.Subject to order 13, until further order of the Court, execution of orders 10 and 11 be stayed.
13.Unless otherwise discharged by order of this Court, or by order of the Federal Court of Australia, order 12 shall be discharged if the respondents do not by 11 July 2025 pay into Court, or into an account the parties agree, $100,000, such sum to be held by the Court or in the account until further order of this Court or of the Federal Court of Australia.
14.The parties have liberty to apply on such notice as the circumstances warrant in relation to:
(a)any question that may arise out of or in connection with the interpretation, operation, or implementation of these orders;
(b)the making of delivery up orders, including orders ancillary to the making of delivery up orders;
(c)costs; and
(d)staying orders that may be made pursuant to (b) or (c).
THE COURT NOTES THAT:
15.The interlocutory injunction that has continued since 30 November 2021 shall cease to have effect as from the time and date these orders are entered.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
SCHEDULE A TO ORDERS
Infringement Table 1
No RAMA Keycap Design template files (Column 1) RAMA Stem template files (Column 2) RAMA Keycap Collaboration template files (Column 3) 1 RAMA-CHERRY-PROFILE- ESCAPE-07.SLDPRT RAMA-R4-ESC- ARTISAN- R007.SLDPRT RAMA-CHERRY- PROFILE- FB- R1.STEP 2 RAMA-CHERRY- PROFILE-ALT- 02.SLDPRT RAMA-KC-MASTER- ALU-CHERRY- STEM.SLDPRT RAMA-CHERRY- PROFILE- OTC_01.STEP 3 RAMA-CHERRY- PROFILE-FN-01.SLDPRT - RW-KC-C-ESC-GMK- AE- 01.STEP 4 RAMA-CHERRY-PROFILE- ENTER-01.SLDPRT - RAMA-CHERRY- SHRIMP_R1.STEP 5 RW-DSA-CAP-02.SLDPRT - RW-KC-C-ESC- DIXIE.STEP 6 RAMA-DSA-REF- R00.SLDPRT - RAMA-CHERRY- OMNI- SBO-R1- 01.STEP 7 RW-KAM-KC-01.SLDPRT - RAMA-CHERRY- PROFILE- AMETHYST- AXE.STEP 7A RW-KC-SA-R3- MASTER.SLDPRT - - 8 RW-KC-SA-R3-MASTER- R02.SLDPRT - RAMA-CHERRY- PROFILE- AMETHYST-GEM. STEP 8A RAMA-DSA-REF-R00- SA.SLDPRT - 9 RAMA-DSA-REF-R00- SA-SCULPTED. SLDPRT - 10 RW-DCS-KEYCAP- 01.SLDPRT - 11 KAT R1.SLDPRT - 12 - 13 RAMA-R4-ESC-ARTISAN- BLANK-R002. SLDPRT - 14 RAMA-R4-ESC-ARTISAN- R008.SLDPRT - 15 RAMA-R4- ESC-ARTISAN- R009.SLDPRT - 16 - - 17 - - RAMA-CHERRY- ESCAPE- APOLLO.STEP 18 - - RAMA-CHERRY- AWAKEN-01.STEP 19 - - RAMA-CHERRY- AZURE_R1.STEP 20 - - RAMA-CHERRY- ESCAPE- BEMOJI.STEP 21 - - RW-KC-C-ESC-GMK- BENTO-01.STEP 22 - - RW-KC-C-ESC-GMK- BENTO-02.STEP 23 - - RW-KC-C-ESC-GMK- BENTO-DEEP- NEW.STEP 24 - - RW-KC-C-ESC- BENTO- 03.STEP 25 - - RW-KC-C-ESC-GMK- BETA.STEP 26 - - RAMA-CHERRY- BIRCH- 01.STEP 27 - - RAMA-CHERRY-R1- BUSHIDO.STEP 28 - - RAMA-CHERRY- CAFE- R1.STEP 29 - - RAMA-CHERRY- ENTER- CIVI_02.STEP 30 - - RAMA-CHERRY- ESC- CIVI_01.STEP 31 - - RAMA-CHERRY- ESCAPE- COJIRO_1.STEP 32 - - RAMA-CHERRY- ESCAPE- COJIRO_2.STEP 33 - - RAMA-CHERRY- DANDY- 01.STEP 34 - - RAMA-CHERRY- R1_DEVO_PEN.STEP 35 - - RAMA-CHERRY- R1_DEVO_ROSE.STE P 36 - - RAMA-CHERRY- DOTS.STEP 37 - - RAMA-CHERRY- DRACULA- ERR.STEP 38 - - RAMA-CHERRY- DRACULA- EYE.STEP 39 - - RAMA-CHERRY- ESCAPE- FINER.STEP 40 - - RAMA-CHERRY- FIRSTLOVE.STEP 41 - - RAMA-CHERRY- FUJI_01.STEP 42 - - RAMA-CHERRY- FUJI_02.STEP 43 - - RAMA-CHERRY- ESCAPE- FUTUREFUNK.STEP 44 - - RAMA-CHERRY- INUKUMA-01.STEP 45 - - RW-KC-C-ESC-GMK- JAMON-BACON- 01.STEP 46 - - RW-KC-C-ESC-GMK- JAMON-EGG- 01.STEP 47 - - RAMA-CHERRY- R1_MAE- HALF.STEP 48 - - RAMA-CHERRY- R1_MAE- MAESTRO.STEP 49 - - RAMA-CHERRY- R1_MAE- QUARTER.STEP 50 - - RAMA-CHERRY- METAVERSE- ESC.STEP 51 - - RAMA-CHERRY- METRO- R-01.STEP 52 - - RAMA-CHERRY- METRO- R-04.STEP 53 - - RAMA-CHERRY- R1_MINIMAL- CIRCLE.STEP 54 - - RAMA-CHERRY- R1_MINIMAL- SQUARE.STEP 55 - - RAMA-CHERRY- R1_MINIMAL- TRIANGLE.STEP 56 - - RAMA-CHERRY-R1- MD2.STEP 57 - - RAMA-CHERRY-R1- MDL.STEP 58 - - RAMA-CHERRY- ENTER- NAUT2.STEP 59 - - RAMA-CHERRY- ENTER- NAUTNIGHTMARES.STEP 60 - - RAMA-CHERRY- NORSE- 01.STEP 61 - - RW-KC-C-ENTER- OLIVE- 03.STEP 62 - - RW-KC-C-ESC- BLOSSOM.STEP 63 - - RAMA-CHERRY- PHOSPHOR.STEP 64 - - RAMA-CHERRY- PKNVY_R1.STEP 65 - - RAMA-CHERRY- GMK- PONO_1.STEP 66 - - RAMA-CHERRY- ESCAPE- POLY_02.STEP 67 - - RAMA-CHERRY- GMK- PONO_2.STEP 68 - - RAMA-CHERRY- PROFILE- ESCAPE- RAINY.STEP 69 - - RAMA-CHERRY- RED DEVILS_01.STEP 70 - - RAMA-CHERRY- RED DEVILS_02.STEP 71 - - RAMA-CHERRY- RDRA- R1.STEP 72 - - RAMA-CHERRY- RDRA-R1- ENTER.STEP 73 - - RAMA-CHERRY- SANDSTORM.STEP 74 - - RAMA-CHERRY- SERIKA- R1.STEP 75 - - RW-KC-C-ESC-GMK- SHANSHUI_1.STEP 76 - - RW-KC-C-ESC-GMK- SHANSHUI_2.STEP 77 - - RW-KC-C-ESC-GMK- SHANSHUI_3.STEP
78 - - RAMA-CHERRY- STAR_01.STEP 79 - - RAMA-CHERRY-R1- SUMI- KANJI.STEP 80 - - RAMA-CHERRY-R1- SUMI- TORII_NEW.STEP 81 - - RAMA-CHERRY- ESC- THINK-02.STEP 82 - - RAMA-CHERRY-FN- THINK-01.STEP 83 - - RAMA-CHERRY- PROFILE- ESCAPE- TRACKDAY- R3.STEP 84 - - RAMA-CHERRY-R1- TUZI_FACE.STEP 85 - - RAMA-CHERRY-R1- TUZI_MOON.STEP 86 - - RAMA-CHERRY- VAPOR.STEP 87 - - RAMA-CHERRY- VOYAGE.STEP 88 - - RAMA-CHERRY- WM_02.STEP 89 - - RAMA-CHERRY- YEETI_R01.STEP 90 - - RW-KC-C-ESC-ION- 01.STEP 91 - - RW-KC-C-ESC- KEYCULT- B.STEP 92 - - RAMA-CHERRY- EPBT_AMALFI.STEP 93 - - RW-KC-SA-R1- DUALSHOT.STEP
94 - - RAMA-CHERRY- SYD2019.STEP 95 - - RW-KC-C-ESC- THERMAL- 02.STEP 96 - - RW-KC-C-ESC- XENO- 01.STEP 97 - - RAMA-CHERRY- ZAMBU.STEP 98 - - RAMA-CHERRY- SHOPIFY_02.STEP 99 - - RAMA-CHERRY-R1_01.STEP
99A RAMA-CHERRY-DREAM- 02.STEP 100 - - RAMA-CHERRY-SOYA-R1.- 01.STEP 101 - - RAMA-CHERRY-PROFILE- ESCAPE-TRACKDAY.STEP 102 - - RAMA-CHERRY-PROFILE- ESCAPE-TRACKDAY-R2 STEP 103 - - RAMA-CHERRY-TERROR- R1.STEP 104 - - RAMA-CHERRY-CHAOS- R1.STEP 105 - - RAMA-KC-SA-GEOMA.STEP SCHEDULE B TO ORDERS
Infringement Table 2
RAMA Keycap Design template file (Column 1) HIBI Keycap Design template file Nature and extent of similarity RAMA-CHERRY-PROFILE- ESCAPE-07.SLDPRT
(RAMA Cherry Keycap template file)HB-CHE-R1- MASTER.SLDPRT
(HIBI Cherry Keycap Master template file)The files share nearly exact dimensions in almost all respects; and they only differ minutely in the dimensions and shape of the internal cavity, and in the use of the chamfers of radius on the edges of the internal stem. RAMA-CHERRY- PROFILE-FN-01.SLDPRT
(RAMA Cherry R4 template file)HB-CHE-R4- MASTER.SLDPRT
(HIBI Cherry R4 Keycap template file)The files “[s]hare nearly exactly the same dimensions in almost all respects”, and that “the layout and critical dimensions are exactly the same -down to 0.00 mm”. RAMA-CHERRY- PROFILE-ENTER- 01.SLDPRT
(RAMA Enter Keycap template file)HB-CHE-ENTER- MASTER.SLDPRT
(HIBI Enter Keycap template file)The files “[s]hare nearly exactly the same dimensions in almost all respects”, and that “the layout and critical dimensions are exactly the same - down to 0.00 mm”. RW-DCS-KEYCAP- 01.SLDPRT
(RAMA DCS template file)HB-DCS-R- MASTER.SLDPRT
(HIBI DCS template file)Design of the two files is nearly identical with only minor differences in the interior cavity around the stem and the size and position of the fillet at the foot of the key. RW-KC-SA-R1-MASTER-
R01.SLDPRT
(RAMA SA R1 template file)HB-SA-R1- MASTER.SLDPRT (HIBI SA
R1 template file)The files are nearly identical in shape and dimension and have been created using nearly identical techniques. RW-KC-SA-R3- MASTER.SLDPRT
(RAMA SA R3 template file)HB-SA-R3- MASTER.SLDPRT
(HIBI SA R3 template file)The files are nearly identical in shape and dimension but have been created using different techniques. RW-DSA-CAP-02.SLDPRT
(RAMA DSA template file)HB-DSA-1U.SLDPRT(HIBI
DSA template file 1); HB-DSA-R1.SLDPRT (HIBI DSA
template file 2)The HIBI DSA template files
and the RAMA DSA template file share nearly exact dimensions in almost all respects.KAT R1.SLDPRT
(RAMA KAT template file)HB-KAM-R1- MASTER.SLDPRT
(HIBI KAT template file)HIBI KAT template file and the RAMA KAT template file have the layout and critical dimensions of the stem that are the exact same – down to 0.00m. RW-KAM-KC-01.SLDPRT
(RAMA KAM template file)HB-KAM-SOLID-01.SLDPRT
(HIBI KAM template file 1);HB-KAM-R1- MASTER.SLDPRT (HIBI
KAM template file 2)Have differing dimensions on the top of the template; have a small but noticeable difference of the two parts of 0.28 mm; have an overall difference in the footprint of 0.27 which would be 0.135 mm either side; and neither file have a stem.
The files are similar in shape and dimensions but have been created using different techniques.RAMA – CHERRY – PROFILE – ESCAPE - 07.SLDPRT
(RAMA Chaos Collaboration template file)HB-CHE-R1-DER- 03.SLDPRT
(HIBI Chaos Collaboration Template file)The HIBI Chaos Collaboration template file and the RAMA Chaos Collaboration template file have the same measurements as the HIBI Cherry Master Keycap file RAMA Cherry Keycap template file respectively. SCHEDULE C TO ORDERS
Infringement Table 3
RAMA Keycap Design template file HIBI Keycap Design template file HIBI collaboration RAMA-CHERRY-PROFILE- ESCAPE-07.SLDPRT
(RAMA Cherry Keycap template file)HB-CHE-R1 - MASTER.SLDPRT
(HIBI Cherry Keycap Master template file)
DMG
Profile: Cherry Profile Escape Row;
Date: 27.09.2021RAMA-CHERRY-PROFILE- ESCAPE-07.SLDPRT
(RAMA Cherry Keycap template file)HB-CHE-R1 - MASTER.SLDPRT
(HIBI Cherry Keycap Master template file)
Soyamilk
Profile: Cherry Profile Escape Row
Date: 01.10.2021RAMA-CHERRY-PROFILE- ESCAPE-07.SLDPRT
(RAMA Cherry Keycap template file)HB-CHE-R1 - MASTER.SLDPRT
(HIBI Cherry Keycap Master template file)
Zenpond
Profile: Cherry Profile Escape Row
Date: 04.10.2021RAMA-CHERRY-PROFILE- ESCAPE-07.SLDPRT
(RAMA Cherry Keycap template file)HB-CHE-R1 - MASTER.SLDPRT
(HIBI Cherry Keycap Master template file)
Dreambird
Profile: Cherry Profile Escape Row
Date: 05.10.2021RAMA-CHERRY-PROFILE- ESCAPE-07.SLDPRT
(RAMA Cherry Keycap template file)HB-CHE-R1 - MASTER.SLDPRT
(HIBI Cherry Keycap Master template file)
Chaos Theory
Profile: Cherry Profile Escape Row
Date: 08.10.2021RAMA-CHERRY-PROFILE- ESCAPE-07.SLDPRT
(RAMA Cherry Keycap template file)HB-CHE-R1 - MASTER.SLDPRT
(HIBI Cherry Keycap Master template file)
Handerbeige
Profile: Cherry Profile Escape Row
Date: 14.10.2021RW-DSA-CAP-02.SLDPRT
(RAMA DSA template file)HB-DSA-1U.SLDPRT(HIBI
DSA template file 1); HB- DSA-R1.SLDPRT (HIBI DSAWitch Girl Profile: DSA
template file 2) Date: 19.10.2021 RAMA-CHERRY-PROFILE- ESCAPE-07.SLDPRT
(RAMA Cherry Keycap template file)HB-CHE-R1 - MASTER.SLDPRT
(HIBI Cherry Keycap Master template file)
Terror
Profile: Cherry Escape Row Date: 23.10.2021RAMA-CHERRY-PROFILE- ESCAPE-07.SLDPRT
(RAMA Cherry Keycap template file)HB-CHE-R1 - MASTER.SLDPRT
(HIBI Cherry Keycap Master template file)
Winter breath
Profile: Escape Row (infer Cherry)
Date: 01.11.2021RAMA-CHERRY-PROFILE- ESCAPE-07.SLDPRT
(RAMA Cherry Keycap template file)HB-CHE-R1 - MASTER.SLDPRT
(HIBI Cherry Keycap Master template file)
November Fog
Profile: Escape Row (infer Cherry)
Date: 01.11.2021RW-KC-SA-R3- MASTER.SPDPRT
(RAMA SA R3 template file)HB-SA-R3- MASTER.SLDPRT
(HIBI SA R3 template file)SA Geoma
Profile: SA Profile – Escape Row R 3
04.11.2021RAMA-CHERRY-PROFILE- ESCAPE-07.SLDPRT
(RAMA Cherry Keycap template file)HB-CHE-R1 - MASTER.SLDPRT
(HIBI Cherry Keycap Master template file)
Tiramisu
Profile: Cherry Escape Row Date: 04.11.2021RAMA-CHERRY-PROFILE- ESCAPE-07.SLDPRT
(RAMA Cherry Keycap template file)HB-CHE-R1 - MASTER.SLDPRT
(HIBI Cherry Keycap Master template file)
Dracula
Profile: R1 (infer Cherry) Date: 06.11.2021RAMA-CHERRY-PROFILE- ESCAPE-07.SLDPRT
(RAMA Cherry Keycap template file)HB-CHE-R1 - MASTER.SLDPRT
(HIBI Cherry Keycap Master template file)
Villanelle
Profile: Cherry Escape Date: 15.11.2021RAMA-CHERRY-PROFILE- HB-CHE-R1 - Power Chord
ESCAPE-07.SLDPRT
(RAMA Cherry Keycap template file)MASTER.SLDPRT
(HIBI Cherry Keycap Master template file)
Profile: Cherry Date: 06.12.2021 RAMA-CHERRY-PROFILE- ESCAPE-07.SLDPRT
(RAMA Cherry Keycap template file)HB-CHE-R1 - MASTER.SLDPRT
(HIBI Cherry Keycap Master template file)
GMK Trackday Profile: Cherry Date: 03.01.2022 RAMA-CHERRY-PROFILE- ESCAPE-07.SLDPRT
(RAMA Cherry Keycap template file)HB-CHE-R1 - MASTER.SLDPRT
(HIBI Cherry Keycap Master template file)
NTD
Profile: Cherry – Ri, 1U Date: 28.01.2022RAMA-CHERRY-PROFILE- ESCAPE-07.SLDPRT
(RAMA Cherry Keycap template file)HB-CHE-R1 - MASTER.SLDPRT
(HIBI Cherry Keycap Master template file)
Fenglisu
Profile: Cherry – R1, 1U Date: 08.03.2022RAMA-CHERRY-PROFILE- ESCAPE-07.SLDPRT
(RAMA Cherry Keycap template file)HB-CHE-R1 - MASTER.SLDPRT
(HIBI Cherry Keycap Master template file)
Jamon
Profile: Cherry – R1, 1U Date: 04.04.2022RAMA-CHERRY-PROFILE- ESCAPE-07.SLDPRT
(RAMA Cherry Keycap template file)HB-CHE-R1 - MASTER.SLDPRT
(HIBI Cherry Keycap Master template file)
Peach Blossom
Profile: Cherry – R, 1U Date: 01.05.2022RAMA-CHERRY-PROFILE- ESCAPE-07.SLDPRT
(RAMA Cherry Keycap template file)HB-CHE-R1 - MASTER.SLDPRT
(HIBI Cherry Keycap Master template file)
Bordeaux
Profile: Cherry – R, 1U Date: 31.05.2022RAMA-CHERRY-PROFILE- ESCAPE-07.SLDPRT
(RAMA Cherry Keycap template file)HB-CHE-R1 - MASTER.SLDPRT
(HIBI Cherry Keycap Master template file)
Arabian Sea
Profile: Cherry – Escape Row Date: 15.06.2022SCHEDULE D TO ORDERS
Infringement Table 4
No Collaboration Date released 9 HIBI & Kam Soaring Skies 28.10.2021 10 HIBI & Hooty 28.10.2021 17 HIBI & Reledendables+ 16.11.2021 18 HIBI & Witch 24.11.2021 19 HIBI & GMK Camping 01.12.2021 20 HIBI & Olive <2 – 3 December 2021 22 HIBI & MW Commute 10.12.2021 23 HIBI & Yukihana 11.12.2021 24 HIBI & Calculator 03.01.2022 25 HIBI & MW Sogurt 03.01.2022 27 HIBI & Fleuriste 25.01.2022 29 HIBI & Blue Moon 02.02.2022 30 HIBI & Kat Chinchillin 02.02.2022 31 HIBI & Evil Eye 02.02.2022 32 HIBI & LNY22 02.02.2022 33 HIBI & Galaxy 04.02.2022 34 HIBI & Superstar 12.02.2022 35 HIBI & Magic Girl 14.02.2022 36 HIBI & Indigo 18.02.2022 37 HIBI & GMK Mercury 25.02.2022 38 HIBI & GMK Orange Boi 01.03.2022 40 HIBI & Reaper 14.03.2022 41 HIBI & Pluto 15.03.2022 42 HIBI & Snzagkeys 16.03.2022 43 HIBI & Voynich 21.03.2022 44 HIBI & Satellite 15.03.2022 45 HIBI & Maroon 28.03.2022 47 HIBI & Cinder 08.04.2022 48 HIBI & Stone Age 09.04.2022 49 HIBI & Petrikeys 15.04.2022 50 HIBI & Gladiator 15.04.2022 51 HIBI x AeBoards 27.04.2022 52 HIBI & Peach Blossom R2 01.05.2022 54 HIBI & ZIMO 05.05.2022 56 HIBI & Prussian Blue 01.06.2022 57 HIBI & GMK Mictlan 03.06.2022 58 HIBI & Instagram 02.06.2022 59 HIBI & Cultured 10.06.2022 61 HIBI & Classic Beige 17.06.2022 62 HIBI & GMK Coral R2 22.06.2022 63 HIBI & GMK Regal 01.07.2022 64 HIBI & James Webb Space Telescope 12.07.2022 65 HIBI & GMK Yütousi 21.07.2022 66 HIBI & GMK Taiga 22.07.2022 67 HIBI & GMK Fitness Studio 29.07.2022 68 HIBI & KDS DEKU 02.08.2022 69 HIBI & DCS DARK SKY 08.08.2022 REASONS FOR JUDGMENT
INTRODUCTION
On 4 April 2025 I published reasons for judgment (earlier reasons) in which I found the applicant (RAMA) succeeded on its causes of action against the respondents.[1] I attached to the earlier reasons a draft of the declarations and orders I considered would give effect to the earlier reasons (Draft Orders), and I did so for the purpose of inviting submissions about the final form of the declarations and orders I should make.
[1] C21 Pty Ltd (Trustee) v Hou (No 5) [2025] FedCFamC2G 479.
The parties filed written submissions and competing proposed forms of orders; and, on 30 May 2025, I heard oral submissions, including on costs. I also heard an application for a stay of some of the final orders I am likely to make. In these reasons for judgment, therefore, I consider what final orders I should make, and whether I should grant a stay. I will also refer to the common ground between the parties about how I should deal with the question of costs.
These reasons for judgment assume a familiarity with the earlier reasons, including the terms I have defined in those reasons.
FINAL ORDERS
Form of injunction
The principal set of issues arises from the form of injunction the parties submit should be made. It would be convenient to begin with the form of injunction the respondents propose:
Subject to orders 9 and 10, the first and second respondents by themselves, their employees and agents, are permanently restrained, without the applicant’s prior consent given in writing, from using any of the files downloaded by Ms Hou as recorded in paragraphs 4(a), 4(b) and 4(c) of these orders.
For the avoidance of doubt, the above order does not prevent:
(a) the First Respondent from using any personal information relating to her; and
(b) the Respondents from making, promoting and selling keycaps from the date of these orders in accordance with:
(i) the HIBI Keycap Design template files described in Column 2 of Infringement Table 2 and Column 2 of Infringement Table 3; and
(ii) the HIBI Keycap Collaboration template files relating to the collaborations constituted by the data contained in the files listed in Column 3 of Infringement Table 3 and the collaborations identified in Column 2 of Infringement Table 4.
I will refer to paragraph (b) of the respondents’ proposed form of injunction as the respondents’ carveout.
The intent and effect of the respondents’ carveout, if adopted, would be to confer a right or liberty on the respondents to make, promote, and sell keycaps in accordance with the information contained in the HIBI Keycap Design template files described in Column 2 of Infringement Table 2 and Column 2 of Infringement Table 3; and the HIBI Keycap Collaboration templates constituted by the data contained in the files relating to the collaborations listed in Column 3 of Infringement Table 3 and in Column 2 of Infringement Table 4. That is information the earlier reasons found constituted the unauthorised substantial reproduction of the RAMA Keycap Design templates that are constituted by data (RAMA templates data) contained in the files listed in Column 1 of each of Infringement Tables 1, 2, and 3, which I found to have been reproduced as a consequence of the respondents’:
(a)infringement of RAMA’s copyright in those templates (Copyright Infringement finding);[2]
(b)breaches of confidence (Breach of Confidence finding);[3] and
(c)breach of s 183(1) of the Corporations Act 2000 (Cth) (Breach of s 183 finding).[4]
[2] C21 Pty Ltd (Trustee) v Hou (No 5) [2025] FedCFamC2G 479, at [301].
[3] C21 Pty Ltd (Trustee) v Hou (No 5) [2025] FedCFamC2G 479, at [328], [333].
[4] C21 Pty Ltd (Trustee) v Hou (No 5) [2025] FedCFamC2G 479, at [371].
The respondents, to a very large extent, rely on the principles relating to the granting of “springboard injunctions” (springboard principles); and they particularly rely on the judgment of White J in Mastec Australia Pty Ltd v Trident Plastics (Aust) Pty Ltd (No 3).[5] Given the respondents’ reliance on the springboard principles, it would be convenient if I identify what those principles are, and their area of operation, before I address the grounds on which the respondents rely for submitting that any injunction that may be granted should be subject to the respondents’ carveout.
[5] Mastec Australia Pty Ltd v Trident Plastics (Aust) Pty Ltd (No 3) [2018] FCA 99.
Springboard injunctions
As White J noted in Mastec, the expression “springboard injunction” is often used in two separate, but related senses:[6]
First, it sometimes refers to the restraint of future lawful conduct when the respondent has, by previous unlawful conduct obtained a head start in a market. The injunction then prevents the respondent from deriving a benefit from its previous unlawful conduct, even though its future conduct may be lawful. Secondly, it sometimes refers to restraints of unlawful conduct, commonly conduct involving the misuse of confidential information. When the confidential information has subsequently come into the public domain (whether by publication of the information or by distribution of a product from which the information may be derived), the injunction is usually issued to prevent misuse of the confidential information only during the period in which the respondent will obtain a head start (a springboard) by that misuse.
[6] Mastec Australia Pty Ltd v Trident Plastics (Aust) Pty Ltd (No 3) [2018] FCA 99, at [8] (Italics in original; bold added).
Although his Honour noted that “springboard injunctions” is used in two senses, the expression is most often used in the first sense; and it is the first sense that is relevant to the respondents’ submissions.
The springboard principles usually need to be addressed when a court considers what relief it should grant, having found that a respondent has misused confidential information. More particularly, the springboard principles need to be addressed when the respondent contends that confidentiality that attached to information at the time the respondent misused it no longer attaches to it; and that it is lawful for any member of the public, including the respondent, to use it. The question the springboard principles addresses is whether, in these circumstances, an injunction should nevertheless be granted to restrain the respondent from using information that is no longer confidential (springboard question).
The answer the springboard principles gives is that an injunction should be granted to restrain the respondent from using information he or she would otherwise be entitled to use if the respondent obtained a benefit or advantage because of his or her use of the information when it was confidential; and the injunction should be granted only for such period as will remove the advantage the respondent obtained. The benefit or advantage a springboard injunction is directed to remove is the use of the information, when confidential, to develop a product of service the respondent has brought, or will bring to market. That advantage has been described as “a bridgehead or springboard into a market”.[7] Stated more simply, the advantage lies in the respondent’s having brought or being able to bring to market a product or service sooner than the respondent would have done, had the respondent not misused the applicant’s confidential information.
[7] Streetworx Pty Ltd v Artcraft Urban Group Pty Ltd (No 2) [2015] FCA 140, at [69] quoting from the judgment of Birss J in Smith & Nephew Plc v Convatec Technologies Inc [2014] RPC 22 [116] to [117].
Three questions arise in relation to the springboard principles. The first is: who must raise the springboard question? This question may be stated in the words of the evidentiary burden of proof: on whom does the burden lie of introducing evidence that gives rise to the springboard question?[8] In the earlier reasons I outlined the elements of a cause of action based on breach of confidence:[9] the applicant must identify the information he or she claims is confidential at the time the respondent misused it, and the matters on which he or she claims the information is confidential. The applicant is not, without more, obliged to allege and prove that the confidential information remained confidential after the time the respondent misused it. That suggests that it is for the respondent to raise the springboard question in some way. This may be done in a defence; or it may be done in some informal way, such as by leading evidence in chief or by cross-examination, if the applicant acquiesces in the springboard question being introduced in that way. Ms Hou and HIBI have not raised the springboard question in their defence; they have instead sought to raise it by cross-examination, and by submissions based on evidence given under cross-examination.
[8] Purkess v Crittenden (1965) 114 CLR 164, at pages 167-168.
[9] C21 Pty Ltd (Trustee) v Hou (No 5) [2025] FedCFamC2G 479, at [307].
The second question concerns what a respondent must do to raise the springboard question. The respondent must do two related things. The first is to articulate with some precision the following:
(a)the once-confidential information the respondent claims is no longer confidential;
(b)the matters on which the respondent relies for claiming the information is no longer confidential;
(c)the steps the respondent has taken to develop for market the product or service the respondent created or developed by use of information that included the once-confidential information; and
(d)the steps and time the respondent could have taken to create the product or service referred to in (c) without the use of the once-confidential information.
The second thing the respondent must do is to adduce sufficient evidence to raise as a triable issue each of the matters I identify in the preceding paragraph.
The third question relates to the legal burden of proof: it always remains with the applicant. That is, assuming the respondent has articulated and adduced sufficient evidence to raise as triable issues that the once-confidential information is no longer confidential, and that the respondent would have been able to create the product or service without the use of the once-confidential information within a particular period, the applicant would bear the legal burden of proving either that the information remains confidential, or the respondent would have taken longer than he or she claims the respondent would have taken to create, without the use of the once-confidential information, the product or service he or she created using the once-confidential information.
The analysis in the preceding three paragraphs draws on the High Court’s judgments in Watts v Rake,[10] and Purkess v Crittenden.[11] In Watts, the defendant to a negligence claim contended that part of the plaintiff’s present condition was traceable to causes other than the accident, and that, had there been no accident, the plaintiff would eventually and prematurely have been incapacitated by the seeds of the disability within him. Dixon CJ said (emphasis added):[12]
As to the second and third of these answers, there is undoubtedly a presumptio hominis in the plaintiff’s favour which any tribunal of fact should insist that the defendant should overcome. If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause.
[10] Watts v Rake (1960) 108 CLR 158.
[11] Purkess v Crittenden (1965) 114 CLR 164.
[12] Watts v Rake (1960) 108 CLR 158, at page 160.
In Purkess the plurality held that the judgments of the High Court in Watts were concerned with the evidentiary, not the legal, burden of proof; and the plurality identified what the defendant was required to do to discharge the evidentiary burden of proof:[13]
It was, we think, with the character and quality of the evidence required to displace a plaintiff's prima facie case that Watts v. Rake . . . was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff's present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (i.e. either substantive evidence in the defendant’s case or evidence extracted by cross-examination in the plaintiff's case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence. In the present case the evidence accepted by the learned trial judge by no means established with any reasonable degree of precision the extent of the appellant’s pre-existing affliction or what its future effects, apart from the result of the defendant's negligence, were likely to be.
[13] Purkess v Crittenden (1965) 114 CLR 164, at page 168.
Thus, where an applicant has established that information is confidential, and a respondent has misused it, but the respondent wishes to contend the information is no longer confidential; and, moreover, the respondent wishes to contend that, but for his or her misuse of information, the respondent, within a particular period, would have been in a position to introduce into the market the product or service he created by use of the information when confidential, the respondent’s contentions “must be the subject of evidence” which, if accepted, would establish “with some reasonable measure of precision” the respondent’s contentions.
The need for a respondent who wishes to rely on the springboard principles to adduce evidence is illustrated by the facts in IPC Global Pty Ltd v Pavetest Pty Ltd (No 3).[14] In that case, two former employees, in breach of their former employer’s copyright and confidential information in software known as Universal Testing Software (UTS), developed their own software known as the Pavetest Testlab Software (PTS version 1). Moshinsky J held that in creating PTS version 1 the respondents infringed the copyright the applicant owned in the UTS. After the proceeding commenced the respondents prepared a second version of the PTS (PTS version 2). Moshinsky J found that the respondents misused confidential information in creating the PTS version 2, but the applicant did not claim the respondents created the PTS version 2 by infringing any copyright. There was evidence, which his Honour accepted, that, although the relevant information was confidential, it was “not of such a kind that could not have been . . . developed” by the respondents. His Honour identified the evidence as follows:[15]
In particular, Mr Feeley’s evidence, which I accept, is to the effect that he could have developed a communications protocol document ‘from scratch’, based on memory and experience, and without reference to UTS confidential information, in two to three weeks (see [124](g) above). Further, it is not suggested that Mr Li would not have been able to develop the TestLab software without reference to the UTS software; he would have required additional instruction and information about the problem domain from other sources, and the process would have taken longer, but it is not suggested that he could not have done this. Ultimately, there did not seem to be any real dispute between the parties about these general propositions.
[14] IPC Global Pty Ltd v Pavetest Pty Ltd (No 3) [2017] FCA 82.
[15] IPC Global Pty Ltd v Pavetest Pty Ltd (No 3) [2017] FCA 82, at [213].
Scope of operation of springboard principles
In their written submissions the respondents submit that “any springboard advantage gained by the Respondents in respect of the keycap designs that could be protected by copyright has long passed”. [16] That implies a submission that the springboard principles apply to the framing of an injunction in relation to the infringement of copyright. I do not accept that submission.
[16] Respondents’ Submissions on Final Orders, [16.a.].
The springboard principles apply to restrain a person from using information that is in the public domain which, but for the granting of a springboard injunction, it would be lawful for the respondent to use. Conduct that constitutes an infringement of copyright, however, is unlawful conduct which may be restrained by injunction, whether or not the works in which copyright subsists is in the public domain. That is confirmed by s 32(2) of the Copyright Act 1968 (Cth) (Copyright Act), which provides that copyright may subsist in works when published in the circumstances specified in that subsection.
To the extent any authority is required for what I say in the previous paragraph, it is provided by the orders Moshinsky J made in IPC Global. His Honour declined to grant a springboard injunction in relation to confidential information his Honour found the respondents breached; but his Honour granted the following permanent injunctions restraining the respondents from infringing the applicant’s copyright in the UTS,:
6.The first respondent, whether by itself, its directors, servants, agents or otherwise howsoever, be permanently restrained, without the licence of the applicant, from infringing the copyright subsisting in the UTS Software by the reproduction, communication, importation, supply, sale or offer for sale or supply of version 1 of the Pavetest TestLab Software.
7.The second and third respondents be permanently restrained from, without the licence of the applicant, authorising the infringement, by the reproduction, communication, importation, supply, sale or offer for sale or supply of version 1 of the Pavetest TestLab Software.
The springboard principles also have no application in relation to the improper use of information in contravention of s 183(1) of the Corporations Act. That subsection is directed to a person’s improperly using for his or her gain, or to the detriment of a corporation, information he or she has obtained as a director or other officer or employee of the corporation. A person’s improperly using information he or she has obtained because of his or her position as a director, officer, or employee of the corporation for his or her benefit, or to the detriment of the corporation, does not cease to be improper only because the director or other officer or employee could have obtained from another source the information he or she obtained through use of his or her position. For that reason, an injunction may be available under s 1324(1) of the Corporations Act to restrain the person from continuing to improperly use the information the person obtained because of his or her position as a director, officer, or employee of the corporation.
Respondents’ submissions in support of the respondents’ carveout
The grounds on which the respondents rely in support of the respondents’ carveout differ according to the finding pursuant to which I have held the respondents’ reproduction of the RAMA templates data was unlawful.
Copyright Infringement finding
As for the Copyright Infringement finding, the respondents principally rely on a letter dated 11 April 2023 RAMA’s lawyer (GT) sent to the respondents’ lawyers in which the following was stated:
We confirm that:
•our client alleges that each of the Hibi Keycaps reproduces the whole or a substantial part of one or more of the Cherry Keycap Design Templates, the Other Design Templates or the Keycap Collaboration Templates (paragraph 32 of the Amended Statement of Claim dated 23 June 2022 (ASOC)).
•our client alleges that the Second Respondent has reproduced; and/or communicated to the public (by making available online or electronically transmitting) the whole or a substantial part of the Cherry Keycap Design Templates, the Other Design Templates or the Keycap Collaboration Templates (paragraph 33 of the ASOC).
•each of paragraphs 32 and 33 of the ASOC refer to (either in the body or in particulars) previous paragraphs of the ASOC including paragraphs 25(a) and 25(b). Those paragraphs allege that the HIBI Keycaps were created by Ms Hou or Hibi Design (paragraph 25(a)) using RAMA IP (paragraph 25(b). The particulars to paragraph 25 refer to Annexure A to the ASOC which identifies the Hibi Keycaps and the relevant Keycap Collaboration, Cherry Keycap Design Template, Other Keycap Design Template and/or Keycap Collaboration Template which or client alleges were copied in the creation of the Hibi Keycaps.
•our client does not allege that the three-dimensional (3D) objects (the Hibi Keycaps themselves) are an infringement of the pleaded works. Paragraph 32 should be read in light of this confirmation. For the avoidance of doubt, our client provides the following further particular to paragraph 32:
(i) Each of the Hibi Keycaps reproduces the whole or a substantial part of one or more of the Cherry Keycap Design Templates, the Other Design Templates or the Keycap Collaboration Templates in the render and production files for those keycaps, and the design template files which are used to create the relevant render and production files (including the files related to the Hibi Keycaps set out in Annexure A to the ASOC).
GT’s letter is no bar to granting an injunction restraining the respondents from using the RAMA templates data they unlawfully reproduced by infringing RAMA’s copyright in that data, provided the injunction would not extend to restraining the respondents from reproducing the RAMA templates data into a three dimensional (3D) form. The framing of an injunction in these terms would prohibit the respondents from reproducing in two dimensional (2D) form the RAMA templates data to create any of HIBI Keycap Design and Collaboration templates (which would be in 2D form), and from reproducing a substantial part of any of the HIBI Keycap Design templates to create any HIBI Keycap Collaboration template. It will also prohibit the respondents from reproducing any HIBI Keycap Collaboration template into a 2D form to the extent that would be a necessary step towards the manufacture, and therefore the reproduction into 3D form, of any HIBI Keycap Collaboration template.
Breach of Confidence finding
The respondents accept that, in the light of the findings contained in the earlier reasons, a viable form of injunctive relief could be framed to prevent further use of the specific files taken from the NAS Server and the Google Takeouts.[17] The respondents further submit, however, that “in contrast” “details of the designs (ie dimensions, layout etc) contained in the “RAMA Design, Stem and Collaboration template files” ought not to be the subject of any injunction as it would prevent the Respondents from designing keycaps that could legitimately be recreated from information in the public domain”; and any such injunction “would vastly exceed any springboard advantage said to have been taken by the Respondents”.[18]
[17] Respondents’ Submissions on Final Orders, [11].
[18] Respondents’ Submissions on Final Orders, [12].
In support of these submission the respondents refer to evidence RAMA led at trial which suggested that the keycap design templates Mr Ramadan developed took, at most, 2-3 months to create; the 3D scanning process could be used to replicate the dimensions of the publicly available keycaps (including RAMA’s keycaps) and those dimensions could be imported into SolidWorks; Mr Ramadan used the process of 3D scanning and described it in his second affidavit; Mr Ramadan agreed that the process was cheap, quick and easy and was readily available; Mr Simpson agreed that you could get very precise dimensions of the keycaps from 3D scanning and that this process would be “reasonably straightforward”; and regardless of whether or not Ms Hou engaged that process previously, Ms Hou is an experienced designer herself who could undertake the 3D scanning process independently of any use of the RAMA Keycap templates.[19] Further, at the hearing on 30 May 2025 counsel for the respondents referred to the following evidence to which the respondents did not refer in their closing written submissions, or in their counsel’s closing address:
..... And I think this follows from your earlier evidence, but had someone wished to do so back in 2017 when these things were on the market, they could have obtained a three-dimensional scan of one of your keycaps and obtained the exact measurements of your keycap?‑‑‑Yes. You can do that with any product.
Yes. Thank you.
[19] Respondents’ Submissions on Final Orders, [13].
There are a number of difficulties with the respondents’ submissions. First, granting an injunction that would restrain the respondents from using any of the RAMA templates data would not “prevent the Respondents from designing keycaps that could legitimately be recreated from information in the public domain”. If, as the respondents contend, such data could readily be obtained from 3D scans of RAMA keycaps, or by some other means, the respondents would be at liberty to obtain such data in that way, and use it to design, manufacture, and sell keycaps. The injunction RAMA seeks is restricted to retraining the respondents from using the RAMA templates data the respondents unlawfully obtained and reproduced and which they have caused to store on devices they control.
Second, the respondents’ submissions assume that information they submit may be obtained from a 3D scan of a RAMA keycap is sufficient to facilitate the reproduction or substantial reproduction of the RAMA Keycap Design templates. The respondents, however, ignore the evidence Mr Ramadan gave of the steps he took to create the RAMA Keycap Design and Stem templates;[20] and the respondents, therefore, do not explain how a person’s being possessed of information the respondents say may be extracted from a 3D scan of a RAMA keycap would be in a position to carry out the steps Mr Ramadan carried out to reproduce RAMA Keycap Design or Stem templates. Nor do the respondents explain how a person’s being possessed of information the respondents say may be extracted from a 3D scan of a RAMA keycap could use that information to reproduce RAMA Keycap Design or Stem templates.
[20] C21 Pty Ltd (Trustee) v Hou (No 5) [2025] FedCFamC2G 479, at [48], [49].
Third, the respondents in effect contend that whatever confidentiality attached to the RAMA templates data, such confidentiality does not extend to a subset of that data, namely, so much of the RAMA templates data I have found Ms Hou used to create the HIBI Keycap Design Template and Collaboration templates. Having accepted, however, that, on the findings made in the earlier reasons, confidentiality attached to some of the RAMA templates data, the respondents would bear the evidentiary burden of:
(a)disentangling from the RAMA templates data, and identifying with some precision, the subset of that data the respondents say Ms Hou used to create the HIBI Keycap Design and Collaboration templates;
(b)articulating with some precision the matters on which the respondents rely for contending that the subset of the RAMA data Ms Hou used to create the HIBI Keycap Design and Collaboration templates was and continues to be in the public domain; and
(c)identifying evidence which, if accepted, would establish with some reasonable measure of precision that the subset of RAMA data Ms Hou used was in the public domain.
The evidence on which the respondents rely, however, does not purport to identify the subset of the RAMA templates data Ms Hou used to create the HIBI Keycap Design and Collaboration templates. The evidence on which the respondents rely consists of general statements made under cross-examination about the ability to obtain dimensions of RAMA keycaps by making a 3D scan of a RAMA keycap. The general statements do not identify the particular RAMA templates data Ms Hou in fact used to create the HIBI Keycap Design, or matters on the basis of which they that such data is in the public domain; and Ms Hou did not give evidence which identifies the RAMA templates data she did use to create the HIBI Keycap Design templates, or how she used it. Further, neither Mr Ramadan nor Mr Simpson was asked in cross-examination about any particular RAMA templates data that Ms Hou used to create the HIBI Design and Collaboration templates could be obtained from a 3D scan of the RAMA keycap to which the RAMA templates data related. For these reasons, the evidence on which the respondents rely, if accepted, is incapable of establishing with any reasonable measure of precision that the subset of RAMA templates data Ms Hou used to create the HIBI Keycap Design and Collaboration templates was or is in the public domain.
A fourth difficulty with the respondents’ submissions is that, even if, contrary to my findings in paragraph 327 of the earlier reasons, and what I say in the preceding paragraphs, the evidence on which the respondents rely affords some evidence that information can be extracted from the RAMA keycaps with which to replicate the RAMA templates data, that evidence must be considered and weighed with evidence that supports a finding that information sufficient to replicate the RAMA templates data cannot be extracted from a 3D scan or physical examination of any one or more RAMA keycaps. Of particular relevance is Ms Hou’s failed attempts to create the “separate native keycap template”.[21] Ms Hou did not say in her affidavits from where she obtained the information with which she attempted to create the “separate native keycap template”. One possibility is that she obtained the information from making a 3D scan of RAMA keycaps. Another possibility is Ms Hou’s having obtained the information from some other source or sources, or by some other means. Either way, that Ms Hou attempted, but failed, to create a “separate native keycap template”, but, as I have found, Ms Hou substantially reproduced the RAMA templates data to create the HIBI Keycap Design templates and, through those templates, the HIBI Keycap Collaboration templates, is a basis for inferring that the RAMA templates data Ms Hou in fact used to create the HIBI Keycap Design and Collaboration templates cannot be obtained from a 3D scan or inspection of any RAMA keycap.
[21] C21 Pty Ltd (Trustee) v Hou (No 5) [2025] FedCFamC2G 479, [187].
In addition to the matters I refer in the preceding paragraph which weigh in favour of finding that it is not possible to extract from a 3D scan or other inspection of a RAMA keycap sufficient information to replicate the RAMA templates data, there is a matter that operates to lessen whatever probative force may be assigned to the evidence on which the respondents rely for contending it is possible and, indeed, relatively easy to extract such information. That matter is Ms Hou’s not having given evidence about the subject, even though the respondents submit Ms Hou is an experienced designer herself who could undertake the 3D scanning process independently of any use of the RAMA templates data.[22] That Ms Hou, being an experienced designer herself, without any explanation, did not give evidence that could support the submission that she could undertake the 3D scanning process by making a 3D scan of a RAMA keycap or by some means independently of her use of RAMA templates, is a basis for giving greater weight to evidence in favour of the RAMA templates data being confidential.[23]
[22] Respondents’ Submissions on Final Orders, [13].
[23] “The principle [in Blatch v Archer] may be invoked for a deficiency in the evidence either of a party bearing the legal onus of proving an issue, or of a party bearing the evidentiary burden only . . . . If the failure is of the latter kind, the direct evidence of the party with the onus of proof can be more readily accepted, and inferences in his favour may be more confidently drawn Jones v. Dunkel”: Payne v Parker [1976] 1 NSWLR 191, at page 200.
Ms Hou’s unexplained failure to give evidence that she could have obtained from a 3D scan of a RAMA keycap, or from some other process, the subset of RAMA templates data to create the HIBI Keycap Design and Collaboration templates is to be contrasted with the facts in IPC Global. As I have already noted, in that case, the misuser of the once-confidential information gave evidence relating to the development of software that did not involve the use of confidential information.
Although, as I noted in paragraph 327 of the earlier reasons, it may be feasible, with great effort or ingenuity to replicate the precise RAMA templates data by reverse engineering or such other process, I find that it is not feasible to replicate the RAMA templates data simply by taking a 3D scan of a RAMA keycap, or by otherwise physically inspecting such keycap. If it were feasible, it is reasonable to expect that Ms Hou would have arranged to have done so long ago, and she would have given evidence to show that she has done so.
Breach of s 183 finding
Subsection 1324(1) of the Corporations Act provides that “the Court” may grant an injunction. In the earlier reasons I found this Court has associated jurisdiction in relation to RAMA’s claims based on contraventions of s 182 and s 183 of the Corporations Act; and, for that reason, this Court is to be treated as “the Court” in s 1324(1). Subsection 1324(1) relevantly provides:
Where a person has engaged, is engaging or is proposing to engage in conduct that constituted, constitutes or would constitute:
(a)a contravention of this Act; or
. . . .
(e)being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of this Act . . .
. . . .
the Court may, on the application of . . . a person whose interests have been, are or would be affected by the conduct, grant an injunction, on such terms as the Court thinks appropriate, restraining the first – mentioned person from engaging in the conduct and, if in the opinion of the Court it is desirable to do so, requiring that person to do any act or thing.
The information the earlier reasons found Ms Hou misused, in contravention of s 183(1) of the Corporations Act, was the RAMA templates data; and the conduct that constituted the improper use of that information was Ms Hou’s using it to create the RAMA Keycap Design and Collaboration templates, and causing HIBI keycaps to be manufactured on the basis of those templates, and selling the HIBI keycaps. The text of 1324(1) is sufficiently wide to authorise the grant of an injunction to restrain the respondents from continuing to use the RAMA templates data for that purpose, or for any other purpose other than RAMA’s purposes.
Counsel for the respondents appeared to submit that an injunction could not be granted to restrain the respondents from continuing to misuse the information, contrary to s 183 of the Corporation Act. The basis of that submission appears to be that RAMA’s causes of action based on breach of fiduciary duty and s 183 of the Corporations Act “were co-extensive and pressed on the same basis as the confident information case” so that, “once you remove the fundamental bedrock, that is the finding that somehow the dimensions or whatever it might be of these keycaps is confidential, the whole thing comes down, we say”.[24] I do not accept that submission. As the earlier reasons should demonstrate, RAMA advanced a distinct cause of action based on a contravention of s 183(1) of the Corporations Act; and, although RAMA’s application does not refer to s 1324 of the Corporations Act, the first order it seeks is an injunction that is framed in terms that is directed to prohibiting the respondents from engaging in conduct that contravenes s 183(1) of the Corporations Act.
[24] T50.40.
Form of injunction proposed by RAMA
RAMA proposes an injunction in the following form:
Subject to order 9, the first and second respondents by themselves, their employees and agents, are permanently restrained, without the applicant’s prior consent given in writing or licence, from using any of the RAMA Confidential Information referred to at order 4(d)(i) (being the RAMA IP) including to gain an advantage for the Respondents and from reproducing or communicating to the public the whole or a substantial part of the RAMA IP (or authorising others to do so).
The “RAMA IP” denotes the information Draft Order 1 identifies, namely, the RAMA Keycap Design templates, the RAMA Stem templates, and the RAMA Keycap Collaboration templates that are constituted by the data contained in the RAMA Keycap template files listed in what the earlier reasons identify as “Infringement Table 1.[25]
[25] C21 Pty Ltd (Trustee) v Hou (No 5) [2025] FedCFamC2G 479, at [290].
Determination
I am satisfied that a permanent injunction can, and should, be granted prohibiting the respondents from using the RAMA templates data. Given, however, that RAMA has excluded from its copyright case a claim of infringement based on a 3D reproduction of the RAMA templates data, and given my conclusion that the springboard principles do not apply to the granting of injunctions in relation to copyright infringement, and injunctions that may be granted under s 1324(1) of the Corporations Act, separate injunctions should be formulated in relation to the Copyright Infringement finding, on the one hand, and the Breach of Confidence and Breach of s 183 findings, on the other. I therefore propose to do the following:
(a)Pursuant to s 115(2) of the Copyright Act grant an injunction restraining the respondents, without the consent or licence of RAMA, from:
(i)reproducing or substantially reproducing into a 2D form, or communicating to the public in a 2D form, the RAMA Keycap Design, Stem, and Collaboration templates constituted by the data contained in the template files listed in Infringement Table 1;
(ii)doing any other act comprised in the copyright RAMA has in the templates referred to in (i), other than reproducing the templates into a 3D form; and
(iii)reproducing into 2D form any of the HIBI Keycap Design and Collaboration templates constituted by the data identified in Infringement Table 3 and Infringement Table 4.
(b)Pursuant to the equitable jurisdiction the Court has been granted by s 140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), and pursuant to s 1324(1) of the Corporations Act, grant an injunction restraining the respondents, without the consent or licence of RAMA, from using in any way the RAMA Keycap Design, Stem, and Collaboration templates constituted by the data contained in the template files listed in Infringement Table 1
The granting of injunctions in this form will not prevent the respondents from doing what they have submitted would be a relatively easy thing to do; namely, obtain from a 3D scan of the RAMA keycap the information that would be necessary to replicate RAMA keycaps, or obtain such information through other means.
Delivery up order
The principal issue that arose in relation to the draft delivery order contained in the Draft Orders concerned the person to whom the respondents may be required to deliver devices that contain RAMA data Ms Hou downloaded, and the means by which infringing material contained on the devices would be destroyed or erased. The parties agreed that any such devices should be provided to an independent third person. There was, however, an exchange with counsel for the respondents which, on reflection, revealed to me an ambiguity with the form of the delivery up order contained in the Draft Orders. The exchange was as follows:
HIS HONOUR: So the injunctions you propose is, in effect, for you to identify – for your client to identify the files that were downloaded, purge them, to use your expression . . . but what survives, though, because you’re relying on the springboard [doctrine], is that that information has found its way – and I use “information” broadly – in, for example, your client’s keycap template file.
MR MERRICK: Templates. Yes.
HIS HONOUR: So they are not affected by the – I mean, I know this is what you’re saying but I’m just articulating it to make sure I understand it.
MR MERRICK: Yes. Absolutely.
HIS HONOUR: So what she has done with that information is not part of the injunction, obviously. That’s what you are contending for?
MR MERRICK: Exactly. Because she – there will be no impediment to her being in that position.
HIS HONOUR: Yes.
HIS HONOUR: All right.
It is apparent that the respondents contemplate they will retain the HIBI Keycap Design and Collaboration templates and, moreover, they will be entitled to use them. That is consistent with the respondents’ submissions in support of the respondents’ carveout. I have concluded, however, and I propose to make declarations to the effect, that the HIBI Keycap Design and Collaboration templates constitute an unauthorised substantial reproduction of the RAMA Keycap Design templates in which copyright of which RAMA is the owner subsists. That means that each of the HIBI Keycap Design and Collaboration templates is an infringing copy of one of the RAMA Keycap Design templates. The delivery up order I drafted contemplated that, if complied with, Ms Hou would identify the files which contain the data that constitutes each of the HIBI Keycap Design and Collaboration templates, and deliver up those files for destruction.
Given the exchange with the respondents’ counsel, I concluded that I should make an order that specifically requires the respondents to deliver up all files that include the data that constitute each of the HBI Keycap Design and Collaboration templates. I had formulated a form of delivery up order to give effect to my conclusion; and I intended to include that order with the declaration and other orders I intended to pronounce at 9.30 am on 13 June 2025, being the time and date on which I listed the matter for judgment. At 5:05 pm on 12 June 2025, however, GT sent an email to my Associate’s inbox attaching RAMA’s proposed form of delivery up order together with a “Delivery Up Protocol”, and noting that the respondents had not had a chance to properly consider RAMA’s proposed draft order. In these circumstances, I propose not to make the delivery up order I intended to make, but leave it up to the parties either to agree to the form of delivery up order I should make, in which case I would be willing to make the order in chambers; or for the parties to apply pursuant to a liberty to apply I will grant for me to determine any dispute about the form of the delivery up orders, either on the papers or after an oral hearing.
DISCHARGE OF EXISTING INTERLOCUTORY INJUNCTION
There is on foot an interlocutory injunction a Judge of this Court granted on 5 November 2021, and which was continued on 30 November 2021 “until the conclusion of the trial or further order”. The interlocutory injunction restrains the respondents “from the use or disclosure of RAMA’s Confidential Information as defined in paragraph 68 of the Lee Affidavit, and any part of that Information”. The “Lee Affidavit” is an affidavit made by Mr Lee on 4 November 2021, paragraph 68 of which is as follows:
In this affidavit, I use the term RAMA Confidential Information to refer to:
(a) the Keycap Design Template;
(b) the Other Keycap Design Templates;
(c) the Keycap Collaborations (including the Soyamilk Keycap Collaboration, the Chaos Theory Keycap Collaboration, the Terror Keycap Collaboration and the Dreambird Keycap Collaboration referred to above);
(d) the files on the “Workshop” folder on RAMA’s Google drive (including the “Products”, “Business”, “Orders”, “Marketing” and “Logistics” subfolders);
(e) the Contact List; and
(f) the Slack communications described above,
all of which are confidential to RAMA.
The interlocutory injunction is expressed to continue “until the conclusion of the trial”. That may be taken to mean until the time and date final orders are made and entered. Thus, if final orders are made and entered then, by the operation of its own terms, the interlocutory injunction will cease to have effect.
APPLICATION FOR A STAY
The respondents propose to file a notice of appeal against the final orders I will make; and they apply for a stay of some of the orders the respondents anticipate I will make. The respondents have adduced an affidavit annexing proposed grounds of appeal.
The respondents rely on a number of matters they submit strongly point to the exercise of the discretion in favour of granting a stay. These include the contention that the grounds of appeal would have good prospects of success. But the principal matter on which the respondents rely is the contention that if a stay is not granted, and RAMA moves to execute the order for the payment of profit (profit order) and costs (once costs are assessed) (costs order), the respondents would be unable to fund their proposed appeal. The respondents adduced some evidence of their financial position. RAMA, on the other hand, submits I should not be satisfied the respondents would have good prospects of success on appeal; and the material on the respondents’ financial position is inadequate.
I am prepared to accept the respondents have arguable grounds of appeal; and I am also prepared to accept that if a stay of the profit and costs orders is not granted, there is a substantial risk that RAMA’s execution of those orders would put it out of the financial power of the respondents to pursue their appeal. This last factor, however, points to a significant potential prejudice to RAMA if a stay is granted. If a stay is granted, and the respondents fail in their appeal, there will be a substantial risk that, having pursued their appeal, the respondents will have spent and exhausted whatever money and assets they may currently hold that would be available to RAMA to satisfy, at least in part, the profit and costs orders.
A fair reconciliation of the respective prejudice the parties will suffer if a stay is or is not granted would be to grant a stay of the profit order, and also to stay any order for costs, once costs are assessed, on terms that, within 28 days after I pronounce orders, the respondents pay $100,000 into Court, or into some other account to be agreed by the parties, to be held by the Court or in such account until further order of the Court. I propose to so order.
I do not propose to grant a stay of the final injunction, given there has been an interlocutory injunction on foot which will cease on my granting a final injunction. For the sake of clarity, however, I will make a notation to the orders I will pronounce that the interlocutory injunction will cease to have effect when the order granting a final injunction is entered.
INTEREST AND COSTS
RAMA applies for a lump sum costs order; and the respondents agree that it would be appropriate for costs to be dealt with in that way. There was some discussion at the hearing about my directing the parties to file evidence and written submissions on costs; but I made no directions. In those circumstances, the convenient course will be leave it to the parties to agree on a timetable for the filing of evidence and submissions on costs, and on whether I should deal with costs on the papers or after a further hearing.
I have relied on the Federal Court Practice Note GPN-INT to calculate interest of $50,490.36 on the profit of $311,956.47 I have held the respondents are liable to pay. I will therefore make an order that the respondents pay interest of $50,490.36.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 13 June 2025
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