FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FACTON LTD & ORS v HADIA EL-SAYADI | [2011] FMCA 617 |
| COPYRIGHT – Sale of counterfeit clothing items – where respondent claimed to be unaware of counterfeit status of goods and lack of money to pay compensation – whether respondent was aware of status of goods – default judgment – where no defence filed – quantum of damages – general damages, damages for loss of reputation, damages for flagrant infringement – tort of passing off – infringement of trademark – contravention of the Fair Trading Act. PRACTICE AND PROCEDURE – Costs – assessment of costs. |
| Trade Marks Act 1995 (Cth), s.120 Fair Trading Act 1987 (NSW), ss.42, 44 Copyright Act 1968 (Cth), ss.115(2), (4) Federal Magistrates Court Rules 2001 |
| First Applicant: | FACTON LTD |
| Second Applicant: | G-STAR RAW C.V |
| Third Applicant: | G-STAR AUSTRALIA PTY LTD ACN 084 011 852 |
| Respondent: | HADIA EL-SAYADI |
| File Number: | MLG 1462 of 2010 |
| Judgment of: | Raphael FM |
| Hearing date: | 4 August 2011 |
| Date of Last Submission: | 4 August 2011 |
| Delivered at: | Sydney |
| Delivered on: | 4 August 2011 |
REPRESENTATION
| Solicitors for the Applicants: | Middletons |
| For the Respondent: | In person |
ORDERS
The Court declares that in the sale of the goods described in the affidavits of Morrie Michael Fahd sworn 28 July 2011, Melissa Kylie Range sworn 29 July 2011 and Leanne Gai Smith sworn 28 July 2011:
(a)The Respondent has infringed the G-Star Trade Marks (as defined in paragraph 5 of the Statement of Claim) in breach of s.120 of the Trade Marks Act 1995 (Cth) (“TMA”);
(b)The Respondent has contravened ss.42 and 44 of the Fair Trading Act 1987 (NSW) (“FTA”);
(c)The Respondent has engaged in conduct which constitutes the tort of passing off.
The Court orders that the Respondent, whether by herself, her servants, employees, agents or otherwise howsoever, deliver up to the Applicants within 21 days of the date of this Order:
(a)All the…
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- Case
- [2011] FMCA 617
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether El-Sayadi was aware of the counterfeit status of the goods, the appropriateness of the default judgment entered against her due to her failure to file a defence, and the quantum of damages to be awarded. The court had to determine if El-Sayadi's claims of unawareness and financial inability were credible, and if so, whether they would absolve her from liability. Additionally, the court needed to assess the appropriate amount of damages, including general damages, damages for loss of reputation, and damages for flagrant infringement.
The court found that El-Sayadi had infringed the G-Star trademarks and contravened the Fair Trading Act by selling counterfeit goods. Despite her claims of unawareness and financial incapacity, the court concluded that El-Sayadi had been aware of the counterfeit status of the goods. Consequently, the default judgment was upheld, and El-Sayadi was ordered to deliver up all counterfeit goods, promotional materials, and other infringing items. The court awarded Facton Ltd damages for copyright infringement and ordered El-Sayadi to pay additional costs.
The final orders of the court declared that El-Sayadi had infringed the G-Star trademarks, contravened the Fair Trading Act, and engaged in the tort of passing off. The court mandated the delivery of all counterfeit goods and promotional materials to Facton Ltd and ordered El-Sayadi to pay damages and costs.
Orders
Orders of the court
The Court declares that in the sale of the goods described in the affidavits of Morrie Michael Fahd sworn 28 July 2011, Melissa Kylie Range sworn 29 July 2011 and Leanne Gai Smith sworn 28 July 2011:
(a) The Respondent has infringed the G-Star Trade Marks (as defined in paragraph 5 of the Statement of Claim) in breach of s.120 of the Trade Marks Act 1995 (Cth) (“TMA”);
(b) The Respondent has contravened ss.42 and 44 of the Fair Trading Act 1987 (NSW) (“FTA”);
(c) The Respondent has engaged in conduct which constitutes the tort of passing off.
The Court orders that the Respondent, whether by herself, her servants, employees, agents or otherwise howsoever, deliver up to the Applicants within 21 days of the date of this Order:
(a) All the Collectable Garments as defined in the Amended Statement of Claim in her possession, custody or control;
(b) All the garments or accessories in her possession, custody or control which feature the Trade Marks or the Copyright Works as defined in the Amended Statement of Claim which have been applied without the consent or licence of the Applicants or any of them;
(c) Any and all brochures, pamphlets, advertising, labels, swing tags, promotional or marketing material and the like in her power, possession, custody or control which bear the G-Star Trade Marks or the Copyright Works; and
(d) Any materials, products or things in the Respondent’s power, possession or control, the exploitation of which by the Respondent would be an infringement of the foregoing injunctions.
(e) The Respondent to pay the Applicants the sum of $22,854.06 in damages for breach of s.115(2) of the Copyright Act 1968 and $30,000.00 for breach of s.115(4) of the Copyright Act 1968.
(f) The Respondent to pay the Applicants’ costs assessed in the sum of $19,723.94.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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