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Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd (No 2)

Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd (No 2)

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Case Copied 27 May 2008 21 min read

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FEDERAL COURT OF AUSTRALIA
Futuretronics.com.au Pty Limited v Graphix Labels Pty Ltd (No 2)
[2008] FCA 746
COPYRIGHT – infringement of copyright – compensatory damages pursuant to s 115(2) Copyright Act 1968 (Cth) – methods of measuring damages – no economic loss established – no injury to reputation established – nominal damages awarded to vindicate invasion of proprietary right
COPYRIGHT – infringement of copyright – additional damages pursuant to s 115(4) Copyright Act 1968 (Cth) – matters to be considered – not preconditions – meaning of “flagrancy of infringement” – second respondent knew or was wilfully blind to fact that he should not have used artworks as he did – flagrant infringement
COPYRIGHT – infringement of copyright – additional damages pursuant to s 115(4) Copyright Act 1968 (Cth) – conduct after infringement or after respondents informed they had allegedly infringed applicant’s copyright – conduct in relation to defence of proceeding – such conduct relevant to costs and not to additional damages
CONTRACT LAW – breach of implied term – no damage established – nominal damages awarded
Copyright Act 1968 (Cth) s 115
Autodesk Australia Pty Ltd v Cheung (1990) 17 IPR 69 referred to
Bailey v Namol Pty Ltd (1994) 53 FCR 102 applied
Fenning Film Service Ltd v Wolverhampton, Walsall and District Cinemas Ltd [1914] 3 KB 1171 referred to
Flags 2000 Pty Ltd v Smith (2003) 59 IPR 191 followed
Futuretronics.com.au Pty Limited v Graphix Labels Pty Ltd [2007] FCA 1621 referred to
General Tire & Rubber Co v Firestone Tyre and Rubber Co Ltd [1976] RPC 197 applied
Milpurrurra v Indofurn Pty Ltd (1994) 54 FCR 240 referred to
MJA Scientifics International Pty Ltd v S C Johnson and Son Pty Ltd (1998) 43 IPR 275 referred to
Paterson Zochonis Ltd v Merfarken Packaging Ltd [1983] FSR 273 referred to
Pollock v J C Williamson Ltd [1923] VLR 225 referred to
Polygram Pty Ltd v Golden Editions Pty Ltd (No 2) 38 IPR 451 referred to
Prior v Lansdowne Press Pty Ltd [1977] VR 65 referred to
Prior v Sheldon (2000) 48 IPR 301 considered
Raben Footwear Pty Ltd v Polygram Records Inc (1997) 75 FCR 88 referred to
Ravenscroft v Herbert and New English Library Limited [1980] RPC 193 referred to
Sony Entertainment (Australia) Ltd v Smith (2005) 215 ALR 788 considered
Sutherland Publishing Co Ltd v Caxton Publishing Co Ltd [1936] 1 Ch 323 referred to
Universal Music Australia Pty Ltd v Miyamoto (aka DJ Moto) (2004) 62 IPR 605 considered
FUTURETRONICS.COM.AU PTY LIMITED ACN 006 327 386 v GRAPHIX LABELS PTY LTD ACN 005 771 773 and JOHN ATTA
VID 1237 OF 2006
BESANKO J
27 MAY 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 1237 OF 2006

BETWEEN:

FUTURETRONICS.COM.AU PTY LIMITED ACN 006 327 386
Applicant

AND:

GRAPHIX LABELS PTY LTD ACN 005 771 773
First Respondent

JOHN ATTA
Second Respondent

JUDGE:

BESANKO J

DATE OF ORDER:

27 MAY 2008

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.For the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] FCA 746
Decision Date: 27 May 2008

CaseChat Overview and Summary

The matter of Futuretronics.com.au Pty Ltd v Graphix Labels Pty Ltd (No 2) involved a dispute between Futuretronics, the applicant, and Graphix Labels, the first respondent, with an additional respondent also involved. Futuretronics sought damages for copyright infringement and breach of an implied term in a distribution agreement. The case was heard in a relevant Australian court.

The legal issues the court had to decide included whether Futuretronics had suffered any damage as a result of the breach of the implied term, and whether the infringement of copyright entitled Futuretronics to damages against both respondents. Futuretronics conceded that it had not demonstrated any actual damage from the breach of the implied term, and therefore, it was only entitled to nominal damages. The court had to determine the appropriate amount of damages for the infringement of copyright and assess whether Futuretronics was entitled to damages against both respondents for the breach of the implied term.

The court found that Futuretronics was entitled to nominal damages for the breach of the implied term and awarded $10.00 against the first respondent. Regarding the copyright infringement, the court concluded that Futuretronics was entitled to judgment against both respondents in the sum of $10,010.00. The court decided that the appropriate amount of damages for the breach of the implied term was nominal and set at $10.00, as Futuretronics had not shown any actual damage. The court also determined that Futuretronics could claim damages for copyright infringement against both respondents.

In conclusion, the court awarded Futuretronics $10,010.00 for the infringement of copyright against both respondents, and an additional $10.00 for the breach of the implied term against the first respondent. The court will hear from the parties regarding the costs of the proceedings.

Orders

Orders of the court

1. For the infringement of copyright there be judgment in favour of the applicant against the respondents in the sum of $10,010.00.

2. For breach of the implied term there be judgment in favour of the applicant against the first respondent in the additional sum of $10.00.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

BESANKO J

The cause of action for breach of implied term lies against the first respondent only and relates to a limited distribution of samples. The applicant accepted that it had not shown any damage resulting from the breach of the implied term and that therefore it was entitled to no more than an award of nominal damages. I agree, and I award the applicant the sum of $10.00 against the first respondent.Conclusion For the infringement of copyright the applicant is entitled to judgment against both respondents in the sum of $10,010 and for breach of the implied term the applicant is entitled to judgment against the first respondent in the additional sum of $10.00. I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

Established by: BESANKO J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1237 OF 2006

JUDGE:	BESANKO J
DATE OF ORDER:	27 MAY 2008
WHERE MADE:	MELBOURNE