Dynamic Supplies Pty Ltd v Tonnex International Pty Ltd (No 3)

Dynamic Supplies Pty Ltd took proceedings against Tonnex International Pty Ltd in the Federal Court, alleging copyright infringement. Dynamic claimed that Tonnex had reproduced a substantial part of its product compatibility charts in Tonnex’s February 2009 price list without permission. The Court was required to decide whether additional damages under section 115(4) of the Copyright Act 1968 (Cth) should be awarded and, if so, the appropriate amount. The Court had to consider whether the infringement was flagrant and whether there were any mitigating factors.

The Court found that the infringement was flagrant, as Tonnex had consciously and deliberately copied a substantial part of Dynamic’s Compatibility Chart. The Court rejected Tonnex’s argument that the copying was unintentional and that there were no appreciable benefits from the infringement. The Court found that the reproduction of a substantial part of Dynamic’s Compatibility Chart was the result of copying that had been consciously and deliberately undertaken. The Court awarded additional damages of $150,000.00, taking into account the flagrant nature of the infringement and the lack of any mitigating factors.

The Court ordered judgment for Dynamic against Tonnex in the sum of $1.00 for damages under section 115(2) of the Copyright Act and $150,000.00 for additional damages under section 115(4) of the Copyright Act. The Court also ordered that the parties file written submissions on the question of costs by specified dates.