Wilson, Allen John v Hollywood Toys (Aust) Pty Ltd
[1996] FCA 126
•7 MARCH 1996
CATCHWORDS
Designs - Whether animal toy an obvious or fraudulent imitation of registered design - consideration of principles governing infringement by obvious or fraudulent imitation - consideration of the role of the statement of monopoly - consideration of the role of prior art - weight to be given to expert evidence - differences are apparent and substantial - copying of idea - no copying of registered design.
The Designs Act 1906 (C'th) ss.4, 20, 23, 25, 25A, 30, 32
Malleys Ltd. v. J.W. Tomlin Pty. Ltd. (1961) 34 ALJR 352
Turbo Tek Enterprises Inc. & Anor. v Sperling Enterprises & Anor. 88 ALR 524
Mangraviti v. Vardi [1976] 2 NSWLR 225
Firmagroup Aust. Pty. Ltd. v. Byrne & Davidson Doors (Vic) Pty. Ltd. & Ors. 1987 73 ALR 321; 61 ALJR 495
Fisher & Paykel Healthcare Pty. Ltd. v. Avion Engineering Pty. Ltd. 103 ALR 239
Dart Industries Inc. v. Decon Corporation Pty. Ltd. (1989) 15 I.P.R. 403
Wanem Pty. Ltd. v. John Tekiela (1990) 19 I.P.R. 435
ALLEN JOHN WILSON & ANOR. V. HOLLYWOOD TOYS (AUST) PTY. LTD. & ORS. NO. VG 326 OF 1993
MERKEL J.
MELBOURNE
7 MARCH 1996
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY No. VG 326 of 1993
BETWEEN
ALLEN JOHN WILSON and ANOTHER
Applicants
- and -
HOLLYWOOD TOYS (AUSTRALIA) PTY LIMITED
and OTHERS
Respondents
Coram:Merkel J
Place:Melbourne
Date:7 March 1996
MINUTE OF ORDERS
THE COURT ORDERS THAT:
The proceeding be dismissed.
The Applicant pay the First and Third Respondents' taxed costs of the proceeding.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY No. VG 326 of 1993
BETWEEN
ALLEN JOHN WILSON and ANOTHER
Applicants
- and -
HOLLYWOOD TOYS (AUSTRALIA) PTY LIMITED
and OTHERS
Respondents
Coram:Merkel J
Place:Melbourne
Date:7 March 1996
REASONS FOR JUDGMENT
The facts
The first applicant, Allen John Wilson, created an imitation horse made out of chicken wire and hessian for use by him as a comedian whilst performing at rodeos. After his children had played with the imitation horse, Mr. Wilson conceived the idea of making an animal toy based on the horse.
In 1989 Mr. Wilson instructed a firm of patent attorneys to obtain intellectual property protection for the idea. The patent attorneys prepared a set of drawings based on Mr. Wilson's instructions. The drawings were made for use in applications for a registered design, which was lodged on 10 August 1989, and for a patent, which was lodged on 19 August 1990.
The design, as illustrated in the drawings, was entered as Design No. 107513 on the register on 1 May 1990 with Mr. Wilson and his wife, the second applicant entered as owners and authors of the design. The patent application was not successful and no patent was granted.
Mr. Wilson commenced work on a prototype of a soft plush toy incorporating the ideas he had used for the design and patent applications.
By October 1992 he had received an international award for the prototype toy which he called the "Hollywood Horse".
After meetings in October 1992 with the third respondent, John Francis Taaff, the applicants agreed to grant him a licence to use their invention.
Mr. Taaff decided to utilise the first respondent, Michael Franklin & Associates Pty. Ltd. (later to become Hollywood Toys (Australia) Pty. Ltd.) as his vehicle for the project. On 30 November 1992 the licence agreement was entered into. The licence was in respect of the trade mark "Hollywood Horse" and patent rights which did not exist.
On 24 March 1993, after becoming aware of the error in respect of the patent rights, Mr. Taaff caused a notice of termination of the licence to be given and thereafter commenced developing his own toy horse based on the prototype he had been given by the applicants.
Meanwhile the applicants, who accepted the termination, granted a licence to BBR International Pty. Ltd. to market the "Hollywood Horse".
The first respondent made a number of changes to the toy and manufactured samples of it in China. It then commenced marketing the toy under the name "Aussie Brumby". The toy met with immediate marketing success. The first respondent received orders for 7,100 units from a number of customers including K-mart, World-4-Kids, Venture, Toys-R-Us, Woolworths and Big W. The units were expected to retail at about $79.95 each.
It was not long before the marketing activities for the Hollywood Horse and Aussie Brumby clashed. Buyers were prepared to acquire one or the other - but not both.
The applicants threatened legal proceedings against retailers marketing the Aussie Brumby. Within a short time retailers indicated that they did not intend to become involved in the parties legal problems and commenced cancelling their orders for the Aussie Brumby. The few remaining orders, which were not cancelled by buyers, were cancelled by the first respondent.
Even before interlocutory injunctions were granted in this court on 18 November 1993 restraining the first respondent from offering for sale or selling Aussie Brumby until trial, the first respondent was working on an alternative prototype toy which it hoped would not infringe the registered design of the applicants.
In the proceedings before me the second prototype was referred to as Aussie Brumby 2. The first respondent commenced marketing that toy in Australia from about October 1993.
As a result of the marketing of the three competing toys and the legal dispute and subsequent litigation in respect of the toys, potential buyers appeared to lose their enthusiasm for all three toys.
In the result only some 6 - 7 Aussie Brumby and 800 - 900 Aussie Brumby 2 toys were sold in Australia between 1993 and 1996. The importation and sale of the Hollywood Horse toy by BBR International was also a marketing failure.
The proceedings
On 5 August 1993 the applicants commenced proceedings against six respondents claiming infringement of their registered design, breach of contract, misuse of confidential information passing off and misleading conduct.
The matter only proceeded before me in respect of the claim against the first and third respondents for infringement of the registered design of the applicants as a result of the importation, offering for sale and sale of Aussie Brumby.
All of the claims in relation to Aussie Brumby 2 and any other claims against the respondents were not pursued. The issue arising for determination by me was whether there was an infringement of the registered design and if so what relief, including damages, should be granted.
The Designs Act 1906 (C'th)
As owners of Design No. 107513 the applicants had a monopoly in the registered design pursuant to the Designs Act 1906 (C'th) ("the Act").[1][1] S.25 and s.25A.
The monopoly conferred the exclusive right to apply the design to an article in respect of which the design was registered.[2] The article in respect of which the design was registered, was an "animal toy".
[2] S.4.
The monopoly conferred is only in respect of the "design" which means:
features of shape, configuration, pattern or ornamentation applicable to an article, being features that, in the finished article, can be judged by the eye, but does not include a method or principle of construction.[3]
The design was the shape and/or configuration of the animal toy as illustrated in the representations being six drawings,
accompanying the application. The representations are set out in the Schedule to these reasons.
Part V of the Act is concerned with infringement of the monopoly in a registered design. s.30 of the Act provides as follows:
[3] S.4.
(1)A person shall be deemed to infringe the monopoly in a registered design if he, without the licence or authority of the owner of the design:
(a)applies the design or any fraudulent or obvious imitation of it to any article in respect of which the design is registered;
(b)imports into Australia for sale, or for use for the purposes of any trade or business, any article in respect of which the design is registered and to which the design or any fraudulent or obvious imitation of it has been applied outside Australia without the licence or authority of the person who was the owner of the registered design at the time when the design or imitation was so applied; or
(c)sells, or offers or keeps for sale, or hires, or offers or keeps for hire, any article:
(i)to which the design or any fraudulent or obvious imitation of it has been applied in infringement of the monopoly in the design; or
(ii)in respect of which the design is registered and to which the design or any fraudulent or obvious imitation of it has been applied outside Australia without the licence or authority of the person who was the owner of the registered design at the time when the design or imitation was so applied.
If any person infringes the monopoly in a registered design, the owner of the design may bring an action or proceeding against him for infringement of the monopoly in the design.
The relief a court may grant in a proceeding for infringement of the monopoly in a registered design includes an injunction and, at the option of the Applicants, either damages or an account of profits.[4]
[4] S.32(B)(1).
Obvious and fraudulent imitation - the law
In the present case it is contended by the Applicants that the first and third Respondents have infringed the monopoly granted to them under the Act in respect of their registered design by applying the design or an obvious or fraudulent imitation of it.
Application of the design requires that the design of the infringing article is the same as the registered design.[5]
[5] Malleys Ltd. v. J.W. Tomlin Pty. Ltd. (1961) 35 ALJR 352, 354.
On any view the design of the Aussie Brumby differs in a number of respects from the registered design. Clearly it is not the same as the registered design. Consequently it was not surprising that the substantive issue contested before me related to whether the Aussie Brumby was an obvious or fraudulent imitation of the registered design.
A number of recent decisions in this Court have considered the principles applicable to determining whether a design is an obvious or fraudulent imitation. In those cases it seems to have been accepted that the legislative changes which have occurred to the Act in recent times have not affected the principles governing infringement by obvious or fraudulent imitation.
In respect of obvious imitation the Full Court in Turbo Tek v. Sperling referred to:
"Mangraviti v. Vardi [1976] 2 NSWLR 225 where Wootten J emphasised that the Designs Act is concerned, not with ideas or inventions, but with design, that is, features of ornamentation, or pattern, or shape, or configuration, which may be applied to an article and which give it individuality to the eye. ........ ....
And went on to say -
that the plaintiff's registration being based on shape and configuration, the plaintiff could not acquire a monopoly of a method of construction, or of the use of a particular material, or of a method of achieving an end, which permit differences of shape. The only monopoly he could acquire was for the particular appearance represented by the drawings.[6]
[6] (1989) 88 ALR 524, 529-30.
The Court then cited the following passage from the High Court judgment in Malleys Ltd. v. J.W. Tomlin Pty. Ltd.[7]
[7] (1961) 35 ALJR 352-3.
"It is, of course, true that every shape is not a design; there must be 'sufficient individuality of appearance' to distinguish it from what Russell-Clarke in Ch 2 of his book Copyright in Industrial Designs aptly describes as 'the fundamental form' of an article. Furthermore, the existence of that sort of individuality is to be determined by the eye and not by measuring dimensions. It follows
that a design need not have the precision of a working drawing; it concerns the shape or configuration of an article, as it appears to the eye. If a design applied by another has the features that are characteristic of the registered design and are so arranged that to the eye the resulting shape is substantially the same, there is infringement, whereas if the same features are arranged so that to the eye the resulting shape is different, there is, in the absence of fraudulent imitation, no infringement. In deciding one way or the other the proportions of common features may be of the utmost importance, but acceptance of this does not involve deciding that to be registrable the representation of the design must be represented so that its proportions can be accurately calculated; it is sufficient if it shows a shape with enough individuality of appearance to distinguish it and to enable it to be determined by visual comparison whether the shape of an article is either the same as, or nothing more than an imitation of, that disclosed by the registered design."
The Court also referred to Firmagroup Aust. Pty. Ltd. v. Byrne & Davidson Doors (Vic) Pty. Ltd. (1987) 73 ALR 321 at 323-4; 61 ALJR 495 at 496-7.[8]
[8] Turbo Tek at p.529-30.
In respect of fraudulent imitation the Full Court said:[9]
[9] Turbo Tek at p.543-4.
For fraud to be imputed to the manufacturer, it must be shown that he knew, or had reason to suspect, that an article which he intends to imitate is an embodiment of a design which is the subject of an application for registration or which has actually been registered.
........ ........ ...
But in making up its mind the court must give proper weight to the finding of fraudulent intention.
........ ........ ...
In other words, an infringer may succeed because, although he has a fraudulent intention, he does make an article, the shape or configuration of which is distinctly different from that in respect of which a design is registered.
The cases we have cited show that it is our eyes which must do the judging. Having performed that exercise, we are satisfied that the differences between the appellants' design and the respondents' article are not subtle. They are apparent and substantial. The question is, therefore, whether they are, nevertheless, mere disguises: see Malley's case (at 354) and the Fabtile case (at 3619). ........ ........ ...
More recently the Full Court in Fisher & Paykel Healthcare Pty. Ltd. v. Avion Engineering Pty. Ltd. discussed fraudulent imitation in the following terms:
It is a misconception to say that fraudulent imitation arises only if a court has held that there is no obvious imitation. The misconception arises because it is generally only necessary to consider fraudulent imitation. It is easier to prove imitation in most cases by examining the registered design and comparing it with the offending article, than by proving the intent of the defendant to copy the design. The authorities demonstrate (in particular Malleys, supra) that to support a finding of fraudulent imitation there may be greater differences between the registered design and the offending design than between the registered design and what could be held to be an obvious imitation. This is because the person who has deliberately set out to copy the registered design is presumed more readily to have achieved his object than the person who did so
innocently. In this respect designs law, though having no common law base, is analogous to passing off.
........ ........ ..
Nevertheless, whether the imitation is obvious or fraudulent, in the final analysis, as the decision in Malleys, supra, illustrates, the offending article must have the same fundamental or basic design as the article embodied in the registered design.
For reasons which we have already given with respect to obvious imitation, we conclude that no case of fraudulent imitation could be made out in the present case because it cannot be said that the Fisher & Paykel wheelchair is a copy of the wheelchair depicted in the registered design that is disguised with differences made merely to disguise copying.[10]
[10] (1991) 103 ALR 239, 248-9.
The general principles to be applied in determining infringement in a particular case were discussed by Lockhart J (in a judgment in which Jenkinson and Gummow JJ agreed) in Dart Industries Inc. v. Decor Corporation Pty. Ltd.[11] Gummow J in Wanem Pty. Ltd. v. John Tekiela[12] summarised those principles as follows:
[11] (1989) 15 I.P.R. 403, 408-12.
[12] (1990) 19 I.P.R. 435, 440.
(i) the first impressions are important in determining whether there is an infringement of a design, (ii) an obvious imitation is one which is not the same as the registered design but is a copy apparent to the eye notwithstanding slight differences, (iii) the question must be looked at as one of substance and by examining the essential features of the design, (iv) a closer correspondence between the
registered design and the alleged infringing design is necessary to satisfy the test of obvious imitation than that of fraudulent imitation, (v) precise mathematical comparisons or matters of measurements or ratios, which form no part of the mental picture which the eye conveys to the brain of shape or configuration suggested by the design, are not to be applied as the test of infringement; appearance to the eye is the critical issue, and (vi) questions of infringement must not be determined by a narrow or overly technical approach in comparison between the design and the alleged infringement, lest the registration be sapped of its worth to the registered owner.
The role of the statement of monopoly
Although the Act provides that an application for registration may be accompanied by a statement of monopoly which upon registration appears on the Register[13] the Act contains no express provision as to its function. The statement is defined as follows:[13] S.20(4) and S.23(3).
"Statement of monopoly", in relation to a design, means a statement relating to the representations of an article to which the design is applied that indicates:
(a)those features of the representations in respect of which the application for registration of the design wishes to claim a monopoly; and
(b)those features of the representations that are to be disregarded in considering the extent of the monopoly protection;[14]
[14] S.4.
The statement of monopoly claimed and entered in the register in respect of the design was as follows:
Monopoly is claimed in the shape and/or configuration of an animal toy as illustrated in the representations accompanying the application."
The register disclosed the Statement of Novelty as "Nil".
Where, as in the present case, the statement does not identify particular features of shape or configuration of the design the design applies to the appearance of the article as a whole and issues of infringement are to be approached with that in mind.[15][15] Wanem Pty. Ltd. v. Tekiela Gummow J at 439-40 and the authorities there referred to. See also Turbo Tek at p.543-4.
Put another way the protection afforded to the animal toy design is with respect to the design as a whole as depicted in the drawings.[16]
[16] Fisher & Paykel v. Avion Engineering Black CJ, Lockhart & Gummow JJ at 243-4.
Was Aussie Brumby an obvious imitation?
Applying the principles set out above the view formed by me on first impressions was that although the design of Aussie Brumby was ultimately based upon and copied the ideas embodied in the drawings illustrating the registered design it was not an imitation of the design depicted in those drawings. Judged by the eye several aspects of the shape and the configuration of the alleged infringing article differed fundamentally from
those depicted in the drawings. In the result I concluded that Aussie Brumby was not the same fundamental or basic design as that contained in the registered design. Despite some close similarities there were apparent and substantial differences. They may be described as follows:-
(a)The features of the shape and configuration of the body and of the horse in the drawings tended to be realistic rather than the caricature and the more stylised or cartoon like features of the shape and configuration of the Aussie Brumby horse.
(b)The shape and configuration of the body depicted in the drawings has a stiffness or rigidity as well as a generally rotund and barrel like shape in contrast to the far smaller, less substantial, generally shapeless and softer features of the design of the body in the Aussie Brumby toy.
(c)The body portion in the drawings sits firmly astride and well above the horse and is of a similar proportion to the horse; whereas the body portion in the Aussie Brumby toy is substantially smaller and sits only slightly above the horse. In general the proportions and general dimensions of the horse and body in each design are fundamentally different.
Importantly, the overall visual impression is such that the totality of the differences were such that to my eye each constituted a different design or, put more precisely, to my
eye Aussie Brumby was not an obvious imitation of the registered design.
Examination of individual features of the two designs also demonstrated that they differ considerably. By way of example the eyes, ear and body shape as well as strapping differ in each. However, in the final analysis those differences and others which exist are but details of the more fundamental differences which I have endeavoured to describe above.
Was Aussie Brumby a Fraudulent imitation ?
The relevant respondents were aware of the applicants' drawings constituting the registered design, and of the fact of its registration, prior to commencing work on their prototypes of the Aussie Brumby. I also infer from the evidence that the relevant respondents were aware of, both the fact and content of, their legal obligation not to infringe the registered design by obvious or fraudulent imitation.
Armed with that knowledge the respondents set about their task of changing and improving upon the design of the Hollywood Horse sample given to them by the applicants. In doing so, at least one of their purposes was to change the design sufficiently so as not to infringe the registered design.
Accordingly, there can be no doubt that such copying as did occur was fraudulent in the technical sense discussed in the authorities.
However, that is not enough. In the end, even allowing for greater latitude in design differences which may amount to disguises, I am satisfied that the requisite copying for fraudulent imitation did not occur. Using the words in Fisher & Paykel[17] it cannot be said that Aussie Brumby is a copy of the animal toy depicted in the registered design disguised with differences merely to disguise copying. In that respect the present case is similar to Turbo Tek[18] where it was held that the differences were "apparent and substantial". In Turbo Tek the court held that it was the idea rather than the design which was copied. The conclusion of the court in that case is apt to the present.[17] (1991) 103 ALR 239.
[18] (1990) 88 ALR 524, 543.
........ ........ ...
In this case the respondents' claim, despite findings of fraud against them, is that the differences alter the design as a matter of substance. As we have said, the differences are obvious and substantial, the shape and configuration of the two articles being to the eye very different. However, there are some close similarities, in particular the siting of the barrel in relation to the reservoir. In this regard however the same comment can be applied as in Malley's case (at 355), namely, that it is the idea which has been copied and not the design. Registration protects the design, that is, the shape and configuration of the article, and not the idea. The allegedly infringing article may take the idea but there is no infringement if there is a substantial difference of a material kind between the two shapes.
In this instance, even though there are considerable similarities, there is a most substantial difference. In Malley's case the primary judge found that it was an imitation because the evidence showed that it had been deliberately based on the registered design. An appeal against this conclusion was upheld by the High Court which was of the view that there was a substantial difference of a material kind. Thus the design applied by the alleged infringer was not an imitation of the registered design but a different design. The High Court said (at 355), "There is, however, no copyright [it makes no difference if one says 'monopoly'] in an idea, and it was the respondent's idea that the appellant took, not its design".
........ ........ .
Fullagar J, whose reasoning in the Fabtile case has received general acceptance, stated the relative importance to be attached to fraudulent conduct on the one hand and production of a copy on the other when he said in substance (at 3619) that even if every feature of the defendant's design was adopted solely in order to disguise a taking from the plaintiff's registered design, it would not be sufficient to show fraudulent imitation if the resultant design was not truly an imitation. Even if every conceivable element of fraud was present, the fraudulent and disguised copying must result in a copy.[19]
[19] Turbo Tek at p.544.
The conclusion of the Full Court in Fisher & Paykel is also apt:
The differences between the wheelchair design and the Fisher & Paykel article are both apparent and substantial and clearly are not mere disguises. Although the two are similar, the Fisher & Paykel wheelchair is not a fraudulent imitation notwithstanding that it was made with the intention of copying the registered design as closely
as possible and with knowledge that the design was or may have been protected by registration.[20][20] (1991) 103 ALR 239 at 249.
In my view Aussie Brumby was made with the intention of copying and improving upon the Hollywood Horse and in the belief that the design of that horse was, in all probability, protected by registration of the design represented by the drawings. However, the end result, whilst probably a copy of the Hollywood Horse, was not a copy of the registered design in the sense required by the authorities.
Expert Evidence
I have been able to arrive at the conclusions set out above without relying upon the expert evidence. The use to which such evidence may be put in a case such as the present is not without difficulty.
Lockhart J discussed the role of expert evidence in the following terms in Dart Industries v. Decor Corporation.
I stated that in my view, the law in Australia concerning that question was that it is for the court to determine the meaning of a design in proceedings under the Act, whether the central question be the meaning of the design, novelty or infringement. I observed that, whilst some designs are simple so that the court needs no expert evidence to interpret them, other designs are complex and judges require technical assistance in order to understand them. Such evidence is plainly admissible, but ultimately it is for the court to rule on the meaning of a design. Similarly, prior art may be a fairly
simple matter in a particular case, requiring little or no technical reasons. I see no objection in an appropriate case to evidence being received from persons in the relevant trade or industry or members of the public directed to the question of infringement; but it is for the court to determine that question with or without such evidence.[21][21] (1989) 15 IPR 403, 408-9.
On the other hand the Full Court in Fisher & Paykel said:
We have examined the evidence of the experts called by each party on this question. The trial judge said in his reasons for judgment that the experts differed in important respects from each other. We have had regard to the preferences expressed by His Honour in his reasons for the evidence of certain witnesses over the evidence of others; but in the end it does not seem to us that the evidence of the experts in the case carried the matter very far on the issues which arise under the Designs Act, as ultimately it is a matter of visual impression.[22]
[22] (1992) 103 ALR 239, 248.
Although the admissibility of the evidence of experts is beyond question, the weight to be given to it is a more difficult issue. In a case such as the present where the drawings in question do not admit of or require significant technical explanation the issue of imitation is very much one of visual impression. Accordingly, in such cases it may well be that little weight is to be given to the expert evidence.
However, even if I attached greater weight to the evidence of the experts called for each party I would have preferred the evidence of the patent attorney called by the respondent which
explained the significant differences between the two designs. In my view the evidence of the patent attorney called by the applicant related more to similarities of ideas and in the functioning of features of the two designs in question rather than similarities in design.
Prior art
In an infringement action prior art can be relevant.
In Firmagroup Australia Pty. Ltd. v. Byrne & Davidson Doors (Vic.) Pty. Ltd. Lockhart J said:
The scope of a registered design must be judged against the background of the prior art at the priority date. If the differences between the registered design and the prior art are only small then equally small differences between the registered design and the alleged infringing design will tend to lead to a finding of no infringement. On the other hand the greater the advance over the prior art in the registered design then, in general, the greater the scope of the protection afforded to the registered design.[23]
[23] (1986) 11 FCR 415 at 425 See also Gummow J in Wanem Pty. Ltd. v. Tekiela 1992 103 ALR 239, 246.
A number of items of prior art were relied upon by the respondents. In my view that prior art related to similar ideas rather than similar designs. In so far as there may have been design similarities they were peripheral to the designs the subject of the monopoly. Accordingly, in my view, the prior art relied upon was not relevant to the issue of infringement in the present case.
Conclusion
For the reasons set out above the applicants' claims of infringement in respect of Aussie Brumby have failed. Accordingly, I dismiss the action with costs.
The present case is a hard luck story for the applicants. They had an innovative idea for a childrens' toy. They instructed patent attorneys to obtain intellectual property protection for that idea. The drawings relied upon for design and patent registration embodied that idea.
It was not until later in the piece that the applicants' design of the Hollywood Horse toy which they wished to market emerged. The toy was based upon the idea but its design differed from that registered broadly in the same respects as did the Aussie Brumby.
Accordingly, when the design of Aussie Brumby was originally taken from the Hollywood Horse, there was in substance, a copying of the design of the Hollywood Horse, but as neither constituted an imitation of the drawings the subject of the registered design, there was no infringement by the respondents of that design.
This case demonstrates the danger in seeking design protection for an idea before that idea had emerged in the form of a
marketable product or item intended to be marketed or otherwise commercially exploited.
I certify that this and the preceding 21 pages are a true copy of the Reasons for Judgment of the Honourable Justice Merkel
Associate:
Dated:7 March 1996
Heard:12, 13, 14 & 15 February 1996
Place:Melbourne
Judgment:7 March 1996
Appearances: Mr. J. Kewley for the Applicant, Mr. S. Stuckey for the First and Third Respondents and Mr. M. Goldblatt for the Fifth Respondent.
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