Interlego AG & Anor v Croner Trading Pty Limited

Interlego AG and LEGO Australia (the applicants) sought special leave to appeal from a decision of the Full Court of the Federal Court of Australia concerning Croner Trading Pty Limited (the respondent). The dispute centred on the interpretation of the phrase "capable of being registered" within the context of Australian copyright legislation, specifically the Copyright Act 1911 and the Copyright Act 1969. The applicants argued that the issues raised were of continuing general importance to design law, copyright law, passing off, and the administration of justice, making the case an appropriate vehicle for the High Court to determine these fundamental questions.

The primary legal issue before the High Court was the correct interpretation of the phrase "capable of being registered" in the context of copyright law. This involved determining the meaning and significance of "fundamental form" in relation to designs, particularly in light of perceived inconsistencies between the Full Court's decision in this matter and previous High Court and Federal Court decisions, such as *Malleys* and *Hosokawa*. The applicants contended that there was significant confusion within the Federal Court regarding the concept of fundamental form, with differing views on its reliance on novelty and prior art.

The applicants argued that the High Court should grant special leave to appeal to resolve the divergence of judicial opinion on the concept of fundamental form. They highlighted a perceived conflict between the Full Court's reasoning in the present case and the principles established in *Malleys*, which had adopted a passage from Russell-Clarke on the subject. The applicants submitted that the Full Court's decision in the *Interlego* case appeared to take an opposite stance to that in *Hosokawa* regarding the significance of fundamental form, creating uncertainty and warranting the High Court's intervention to clarify the law.