Global Brand Marketing Inc v Cube Footwear Pty Ltd

Global Brand Marketing Inc commenced legal proceedings against Cube Footwear Pty Ltd and others, asserting claims for copyright infringement regarding two footwear styles, “Wish” and “Kortnay.” The plaintiff alleged that the defendants infringed its copyright by importing, selling, or offering to sell the disputed footwear, contravening sections 37 and 38 of the Copyright Act 1968 (Cth). The plaintiff sought declarations of infringement, damages, an account of profits, and ancillary relief. The defendants contended that the plaintiff’s copyright was invalid and that the sale of the footwear did not constitute an infringement under section 77 of the Act.

The court examined whether the defendants' actions constituted an infringement of the plaintiff's copyright under sections 37 and 38 of the Act. The primary legal issue was whether the defendants' sale of the footwear, which allegedly copied the plaintiff's designs, constituted an infringing act. The court also considered the applicability of section 77 of the Act as a defence, particularly in light of the amendments introduced by section 77A. The court had to determine if the defendants' actions post-amendment on 17 June 2004 could still be considered infringing under the old provisions if the reproduction of the patterns occurred before that date.

The court found that the defendants' activities constituted an infringement under sections 37 and 38 of the Act. It held that the defendants' importation and sale of the footwear, which replicated the plaintiff's designs, amounted to an infringing act. The court rejected the defendants' argument that section 77 provided a defence, as the section was inapplicable to the specific circumstances of the case. The court determined that the reproduction of the patterns by the defendants constituted an infringement of the plaintiff’s copyright, irrespective of the amendments introduced by section 77A.

The court dismissed the first defendant's Notice of Motion and ordered the first defendant to pay the plaintiff's costs associated with the motion. The court's decision upheld the plaintiff's claims of copyright infringement and denied the defendants' defences, leading to the enforcement of the plaintiff's rights under the Copyright Act.