FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FACTON LTD & ORS v AZADZOI | [2012] FMCA 800 |
| COPYRIGHT – Allegations of contraventions of Copyright Act and other statutes – passing off – failure of Respondent to participate in trial and comply with interrogatory orders – failure of Respondent to file Notice of Dispute to Applicants’ Notice to Admit – assessment of compensation to be paid to Applicants, including for loss of reputation – costs. |
| Copyright Act 1968 (Cth), ss.38, 115(2), 115(4), 116, 120, 126 Fair Trading Act 1999 (Vic), ss.9, 12 Trade Marks Act 1995 (Cth), s.120(1) |
| First Applicant: | FACTON LTD |
| Second Applicant: | G-STAR RAW C.V. |
| Third Applicant: | G-STAR AUSTRALIA PTY LTD (ACN 084 011 852) |
| Respondent: | JOHN IQBAL AZADZOI (ALSO KNOWN AS IQBAL AZADZOI) |
| File Number: | MLG 314 of 2011 |
| Judgment of: | O’Dwyer FM |
| Hearing date: | 2 April 2012 |
| Date of Last Submission: | 2 April 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 7 September 2012 |
REPRESENTATION
| Counsel for the Applicants: | Mr T.D. Cordiner |
| Solicitors for the Applicants: | Middletons |
| The Respondent: | No appearance |
THE COURT ORDERS THAT:
Leave be granted to the Second Applicant to amend its name to “G-Star Raw C.V.”
Leave be granted to the Applicants to file an Amended Statement of Claim.
AND THE COURT DECLARES THAT:
The Respondent has infringed the G-Star trademarks (as defined in paragraph 5 of the Amended Statement of Claim) in breach of s.120 of the Trade Marks Act 1995 (Cth) (Trade Marks Act).
The Respondent has infringed or authorised the infringement of the copyright works (as defined in paragraph 7 of the Amended Statement of Claim).
The Respondent has contravened sections 9 and 12 of the Fair Trading Act 1999 (Vic).
The Respondent has committed the tort of passing off.
AND THE COURT FURTHER ORDERS THAT:
The Respondent, whether by himself, his servants, employees, agents or otherwise howsoever, deliver up to the Applicants:
(i)all of the…
Continue reading Facton Ltd v Azadzoi
Sign in free to access the full text
- AGLC
- Facton Ltd v Azadzoi [2012] FMCA 800
- Case
- [2012] FMCA 800
- Decision Date
CaseChat Overview and Summary
The court was required to determine several legal issues, including whether the trademarks were indeed infringed, whether the defendant had reproduced or distributed the plaintiffs' copyright works without permission, and if the defendant's conduct amounted to misleading or deceptive conduct under the Fair Trading Act. Additionally, the court had to consider if the defendant's actions constituted passing off and whether the plaintiffs were entitled to the specified relief and costs.
The Federal Court found in favour of the plaintiffs on all counts. The court held that the trademarks had been infringed as the defendant had used them without permission. It was also determined that the defendant had reproduced and distributed the plaintiffs' copyright works without consent. The court ruled that the defendant's conduct constituted misleading or deceptive conduct under the Fair Trading Act. Furthermore, the court found that the defendant had passed off his goods as those of the plaintiffs. Consequently, the court ordered the defendant to deliver up all infringing goods and materials, pay damages and costs to the plaintiffs, and serve a copy of the orders on the defendant.
The court granted the second applicant leave to amend its name to "G-Star Raw C.V." and also allowed the applicants to file an amended statement of claim. The court declared that the respondent had infringed the trademarks, copyright works, and committed passing off, and had contravened sections of the Fair Trading Act. It further ordered the respondent to deliver up all infringing goods and materials, pay damages and costs, and serve a copy of the orders on the respondent.
Orders
Orders of the court
1.
Leave be granted to the Second Applicant to amend its name to “G-Star Raw C.V.”
2.
Leave be granted to the Applicants to file an Amended Statement of Claim.
AND THE COURT DECLARES THAT:
3.
The Respondent has infringed the G-Star trademarks (as defined in paragraph 5 of the Amended Statement of Claim) in breach of s.120 of the Trade Marks Act 1995 (Cth) (Trade Marks Act).
4.
The Respondent has infringed or authorised the infringement of the copyright works (as defined in paragraph 7 of the Amended Statement of Claim).
5.
The Respondent has contravened sections 9 and 12 of the Fair Trading Act 1999 (Vic).
6.
The Respondent has committed the tort of passing off.
AND THE COURT FURTHER ORDERS THAT:
7.
The Respondent, whether by himself, his servants, employees, agents or otherwise howsoever, deliver up to the Applicants:
(i) all of the Azadzoi garments (as defined in paragraph 10 of the Amended Statement of Claim) in his possession, custody or control; and
(ii) any and all brochures, pamphlets, advertising, labels, swing tags, promotional or marketing material and the like in his power, possession, custody or control which bear the G-Star trademarks or the copyright works (as defined in paragraphs 5 and 7 respectively of the Amended Statement of Claim).
8.
The Respondent pay to the Applicants, pursuant to s.126 of the Trade Marks Act and s.115(2) of the Copyright Act 1968 (Cth) (Copyright Act) the sum of $20,009.13.
9.
The Respondent pay the Applicants in respect of additional damages pursuant to sections 115(4) and 116 of the Copyright Act the sum of $25,000.
10.
The Respondent pay the costs of the Applicants.
11.
The Applicants serve a sealed copy of these orders on the Respondent as soon as practicable.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.