Lazy-Days Investments Pty Ltd (A.C.N. 010 262512) v Sunburn Enterprises Pty Ltd

[1991] FCA 335

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JUDGMENT NO. .. -...... . 335,41

IN THE FEDERAL COURT OF AUSTRALIA ) No. QG 46 of 1991

QUEENSLAND DISTRICT REGISTRY	1	I
GENERAL DIVISION	1

BETWEEN: LAZY-DAYS INVESTMENTS PTY. LTD.

JA.C.N. 010 2625121

First Applicant

AND: CARL FRANCIS BIRCH

Second Applicant

AND: LESLEY GAIL BIRCH

Third Applicant

AND: SUNBURN ENTERPRISES PTY. LTD.

First Respondent

AND: GRAHAM WILLIAM LINDSAY AND

ROBYN MARGARET LINDSAY

Second Respondents

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	28 MARCH 1991
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

Order 36 of the Federal . Court Rules.

1.    The application for interim relief be dismissed.

NOTE :  Settlement and

-	entry	of orders is dealt with in
IN THE FEDERAL COURT OF AUSTRALIA	1	NO. QG 46 of 1991
QUEENSLAND DISTRICT REGISTRY	1	I
GENERAL DIVISION	1

BETWEEN: LAZY-DAYS INVESTMENTS PTY. LTD.

(A.C.N. 010 262512)

First Applicant

AND:  CARL FRANCIS BIRCH

Second Applicant

AND: LESLEY GAIL BIRCH

Third Applicant

AND: SUNBURN ENTERPRISES PTY. LTD.

First Respondent

AND: GRAHAM WILLIAM LINDSAY AND

ROBYN MARGARET LINDSAY

Second Respondents

CORAM: PINCUS J.

PLACE2 BRISBANE

W:  28 MARCH 1991

EX TEMF'ORE REASONS FOR JUDGMENT

This is a suit claiming breach of copyright, and Mr.

Sheaffe applies on behalf of the applicants today for interim

relief.

Mr. Savage appears for the respondents and says he wishes an adjournment to be granted to enable him to prepare evidence. However, as things have eventuated, I think the evidence which Mr. Savage wanted to prepare has been given by his witness, and a clear picture emerges. This is not to say, of course, that further investigations might not change the picture.

The object which is said to have been copied is a design of cloth, essentially, applied to a swimsuit. The respondent has not, at this stage, taken any point about the registrability of the design or the possibility that that might impact upon the claim for breach of copyright. I therefore say nothing on that subject; that is, I do not pause to consider whether, had the point been taken, the respondents might have successfully resisted the proceedings on the ground that the applicants were seeking to protect a registrable design.

The way in which the case has been put is that two particular swimsuits - exhibits 1 and 2 - are so similar as to show a breach of copyright. The evidence of the witness is to the effect that there was no copying other than of designs presented by a person other than the applicants, and it is said, in effect, that the similarity of colours is a

be so, it seems to me that, from the point of view of showing	coincidence. Whether or not that will ultimately be found to	that sort of strong case which one requires to justify a grant of interim relief, the applicants have some difficulty.
It is true that the garment styles are somewhat similar - ignoring the colours - but the similarity of the designs themselves is by no means close. It is the similarity of colours which makes the eye identify the garments as being
similar.
One of the difficulties which the applicants face, as it seems to me, is that they did not, apparently, originate the colours. They are standard manufacturer's colours. Therefore, that element of originality is only in the selection of a number of standard manufacturer's colours.
The authorities say - and there is now a number of decisions of the Full Court to this effect - that, when one is considering the substantiality of reproduction for the purpose of copyright, one is entitled - indeed obliged - to consider to what extent what is being copied is original and meritorious.
Here, the idea of having a floral design is not original, as Mr. Savage points out. The idea of using a hibiscus design is not original. The designs themselves are
colour combination, which is quite similar. However, the not very similar at all, to my mind. What is similar is the colour combination has a low degree of originality, so far as
the applicants are concerned, because they simply chose standard colours from a chart. In those circumstances, so far from it seeming that the applicants have a strong case on this evidence, it seems to me their case is only of moderate strength.

I

I hasten to add that nothing which I say should be regarded as expressing a final view. The matter has been argued but briefly. The evidence has not been other than summarily tested by Mr. Sheaffe, and it may be that, on a more comprehensive preparation, the applicants would do better.

However, it seems to me clear that, on the present material, the applicants cannot succeed in obtaining interim relief, and the application for interim relief will be dismissed.

I certify that this and the three preceding pages are a true copy of the reasons for judgment herein of his Honour Mr. Justice Pincus.

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Associate

Date 26 Mar&