Kenneth Stephen Done and Ken Done and Associates v Creative Pty Ltd

In the matter of *Kenneth Stephen Done and Ken Done and Associates v Creative Pty Ltd*, the Federal Court of Australia considered a dispute concerning alleged breaches of copyright and trade mark rights. The applicants, Kenneth Stephen Done and Ken Done and Associates, are well-known artists and their associated company, while the respondent, Creative Pty Ltd, is a company involved in the design and sale of goods. The core of the dispute revolved around the respondent's use of certain artistic designs that the applicants claimed were substantially similar to their own copyrighted works and infringed their registered trade marks.

The Federal Court was tasked with determining whether the respondent's designs constituted an infringement of the applicants' copyright. This involved assessing whether the respondent had copied a substantial part of the applicants' original artistic works, considering both the qualitative and quantitative aspects of the copying. Additionally, the court had to determine whether the respondent's use of the designs infringed the applicants' registered trade marks, which likely involved an examination of whether the respondent's use was likely to deceive or cause confusion among consumers as to the origin of the goods.

Justice Ian Thompson's reasoning focused on the principles of copyright infringement, particularly the requirement for originality and the concept of "substantial part." His Honour would have analysed the similarities between the respective works, considering the expression of ideas rather than the ideas themselves. In relation to the trade mark claims, the court would have applied the established tests for trade mark infringement, assessing the likelihood of confusion in the marketplace. The court's ultimate decision would have been based on its findings regarding the extent of copying and the likelihood of deception or confusion.