Peter Vogel Instruments Pty Ltd v Fairlight.Au Pty Ltd

The appeal was brought by Peter Vogel Instruments Pty Ltd (PVI) against Fairlight.Au Pty Ltd (Fairlight). PVI challenged the primary judge's decision that it had breached the terms of an agreement between the parties, leading to the termination of the agreement, and that PVI had not infringed Fairlight's copyright. Fairlight claimed that PVI had used its trade mark in a manner that exceeded the scope of the licence granted to PVI and that PVI had not performed its obligations under the agreement. PVI argued that Fairlight had wrongfully terminated the agreement and that it had not breached the agreement or infringed Fairlight's copyright.

The court considered whether the primary judge had erred in finding that PVI had breached the agreement by using the trade mark in a manner that exceeded the scope of the licence. The court found that the agreement did not require PVI to sell the CMI Products under the Fairlight trade mark. The court also found that the primary judge had erred in finding that Fairlight had validly terminated the agreement, and that PVI had not breached the agreement or infringed Fairlight's copyright.

The court allowed the appeal in part and found that Fairlight had wrongly terminated the agreement. The court also found that Fairlight had infringed aspects of PVI's copyright in software that it supplied to third parties. The court made orders restraining Fairlight from using the Fairlight trade mark without authorisation from PVI, and delivering up products and materials bearing the trade mark to PVI for destruction. The court remitted the proceeding to a primary judge to determine damages, an account of profits, and costs.

This case highlights the importance of clearly defining the scope of a trade mark licence in an agreement between parties. It also emphasises the need for parties to perform their obligations under an agreement and the consequences of wrongfully terminating an agreement. Additionally, this case demonstrates the court's willingness to consider whether a party has infringed another party's copyright in software.