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Muscat v Le

Muscat v Le

Case [2003] FCA 1540 19 December 2003

Design Infringement

Artistic Work

Craftsmanship

Industrial Application

Design Registration

Intellectual Property Law

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FEDERAL COURT OF AUSTRALIA
Muscat v Le [2003] FCA 1540
COPYRIGHT – infringement – garments – design drawing – dressmaking pattern – whether copied – inference from similarities – reproduction – three-dimensional reproduction – prototype garment – artistic craftsmanship – defence to infringement – design applied industrially – plan to plan copying
Copyright Act 1968 (Cth) ss 10(1), 14, 21(3)(a), 74, 77(1), 77(2), 77(3)
Copyright Act 1911 (UK)
Copyright Regulations 1969 reg 17(1)(a)
Designs Act 1906 (Cth) s 4
Designs (Consequential Amendments) Bill 2002 (Cth)
Designs Regulations 1982 reg 11
Fair Trading Act (Vic) s 9
Amalgamated Mining Services Pty Ltd v Warman International Ltd (1992) 24 IPR 461 followed
Burke and Margot Burke, Limited v Spicers Dress Designs [1936] Ch 400 referred to
Compagnie Industrielle de Precontrainte et D’Equipment des Constructions SA v First Melbourne Securities Pty Ltd (1999) 44 IPR 512 followed
Coogi Australia Pty Ltd v Hysport International Pty Ltd (1998) 86 FCR 154 referred to
Cuisenaire v Reed [1963] VR 719 referred to
Dalgety Australia Operations Ltd v FF Seeley Nominees Pty Ltd (1985) 5 IPR 97 followed
Dr Martens Australia Pty Ltd v Rivers (Australia) Pty Ltd (1999) 95 FCR 136 cited
Eagle Homes Pty Ltd v Austec Homes Pty Ltd (1999) 87 FCR 415 followed
Edwards Hot Water Systems v S W Hart & Co Pty Ltd (1983) 1 IPR 228 cited
Francis Day & Hunter Ltd. v Bron [1963] Ch 587 followed
George Hensher Ltd. v Restawile Upholstery (Lancs.) Ltd. [1976] AC 64 applied
Greenfield Products Pty Ltd v Rover Scott Bonnar Ltd (1990) 17 IPR 417 cited
Guild v Eskandar Limited [2001] FSR 645 applied
Hosokawa Micron International Inc v Fortune (1990) 26 FCR 393 cited
J. Bernstein Ltd. v Sydney Murray Ltd [1981] RPC 303, 329 cited
Kevlacat Pty Ltd v Trailcraft Marine Pty Ltd (1987) 11 IPR 77 cited
King Features Syndicate, Incorporated v O. and M. Kleeman, Limited [1941] AC 417 referred to
Klarman (H.) Ld v Henshaw LinenSupplies [1960] RPC 150 cited
Koninklijke Philips Electronics NV v Remington Products Australia Pty Ltd (2000) 100 FCR 90 cited
Ladbroke (Football) Ltd. v William Hill (Football) Ltd. [1964] 1 WLR 273 followed
Lerose Limited v Hawick Jersey International Limited [1974] RPC 42 cited
Merlet v Mothercare plc (1984) 2 IPR 456 disapproved
Pacific Gaming Pty Ltd v Aristocrat Leisure Industries Pty Ltd (2001) 116 FCR 448 cited
Parkdale Customs Build Furniture Proprietary Limited v Puxu Proprietary Limited (1982) 149 CLR 191 applied
Radley Gowns Ltd. v Costas Spyrou (trading as “Touch of Class” and “Fiesta Girl”) [1975] FSPLR 455 cited
Regina v Registered Designs Appeal Tribunal; Ex parte Ford Motor Co. Ltd. [1995] 1 WLR 18 followed
S. W. Hart & Co. Proprietary Limited v Edwards Hot Water Systems (1985) 159 CLR 466 referred to
Sifam Electrical Instrument Company Limited v Sangamo Weston Limited [1973] RPC 899 followed
Shacklady v Atkins (1994) 30 IPR 387 followed
Thornton Hall Manufacturing Ltd v Shanton Apparel Ltd (No 2) [1989] 1 NZLR…

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.

Continue reading Muscat v Le

Details

AGLC: Muscat v Le [2003] FCA 1540
Case: [2003] FCA 1540
Decision Date: 19 DECEMBER 2003

CaseChat Overview and Summary

In the Federal Court of Australia, Theresa Muscat, a fashion designer, sued Dat-Tien (David) Le and Loan (Lisa) Le, who operate fashion retail outlets under the name "Dolly Girl," for copyright infringement, trademark infringement, misleading conduct under the Fair Trading Act, and the tort of passing off. Muscat claimed that the respondents copied her design for a pair of pants, which she designed and marketed under the label "Mytiko." The pants featured a low v-shaped waistband and a flared leg. The respondents admitted to selling similar pants, but claimed that they designed their pants independently and purchased other pants in Hong Kong. The court found that the respondents copied the design and infringed Muscat's copyright. The court also found that the respondents breached the terms of a settlement agreement by selling the infringing pants after the agreement was signed. The court granted Muscat a permanent injunction and damages for the breach of the settlement agreement. The court also found that the respondents infringed Muscat's copyright in the design drawing, but not in the dressmaking patterns. The court dismissed the remaining claims for passing off and misleading conduct.

Orders