Polyaire Pty Ltd v K-Aire Pty Ltd (No 2)

Polyaire Pty Ltd commenced proceedings against K-Aire Pty Ltd and others in the Federal Court of Australia, alleging infringement of a registered design. The dispute centred on whether the defendants had fraudulently imitated the plaintiff's registered design and whether the plaintiff was entitled to elect between an account of profits and damages. The plaintiff sought orders requiring the defendants to disclose information and materials to facilitate its election.

The primary legal issue before the court was whether the plaintiff could elect between an account of profits and damages and, if so, the appropriate time for making such an election. A secondary issue was whether the sales of infringing articles, which were part of kits or packages, could be attributed to the registered design. The court also had to consider the plaintiff’s request for disclosure orders to assist in making its election.

In deciding the case, the court held that the plaintiff could indeed elect between an account of profits and damages. The court found that the plaintiff's case was reasonably arguable, and thus the orders for disclosure should be made. The court reasoned that the orders were necessary to enable the plaintiff to make an informed decision regarding its election. The court emphasised that while the orders would be burdensome for the defendants, this was not a sufficient reason to deny them in a case of this nature. The court further noted that the sales of the infringing articles, even when sold as part of kits or packages, could be attributed to the registered design.

The court ultimately granted the plaintiff's application for disclosure, finding that the plaintiff's case was reasonably arguable. The court ordered the defendants to provide the necessary information and materials to the plaintiff to facilitate its election between an account of profits and damages.