Dreamtech Designs & Productions Pty Limited v Clownfish Entertainment Limited
[2015] NZHC 1143
•27 May 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2014-404-003314 [2015] NZHC 1143
BETWEEN DREAMTECH DESIGNS &
PRODUCTIONS PTY LIMITED Plaintiff
AND
CLOWNFISH ENTERTAINMENT LIMITED
First Defendant
CEQT LIMITED Second Defendant
MICHELLE LOUISE JENSEN Third Defendant
DAVID MATTHEW SMITH Fourth Defendant
Hearing: 15 April 2015 Appearances:
B Henry for the Plaintiff
D Marriott for the DefendantsJudgment:
27 May 2015
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Wednesday, 27 May 2015 at 3:30 pm pursuant to r 11.5 of the High Court Rules 1985.
Registrar/Deputy Registrar
……………………………………
Solicitors / Counsel:
Ms M A Shanahan, Shanahans, Family and Property Law, Auckland
Mr B Henry, Barrister, AucklandMr D Smith, Gaze Burt, Solicitors, Auckland
Mr D Marriott, Barrister, Auckland
DREAMTECH DESIGNS & PRODUCTIONS PTY LTD v CLOWNFISH ENTERTAINMENT LTD & ORS [2015] NZHC 1143 [27 May 2015]
Overview
[1] The plaintiff, Dreamtech Designs & Productions Pty Limited (Dreamtech) seeks an interim injunction against the defendants, Clownfish Entertainment Limited (Clownfish), CEQT Limited (CEQT) and the two directors and shareholders of Clownfish and CEQT, pending the substantive hearing of their claim against the defendants.
[2] Dreamtech seeks to prevent Clownfish and CEQT operating certain elements of their businesses operating out of Auckland and Queenstown known as the Odyssey Sensory Mazes (Odyssey), and certain means of presentation of those businesses. Dreamtech claims that Clownfish and CEQT have infringed its copyright under the Copyright Act 1994 (the Act), in relation to it’s Gold Coast- based business, the Infinity Attraction (Infinity) by creating the Odyssey Sensory Mazes, and that Clownfish and CEQT have misrepresented that their attractions are authorised by or connected with Infinity.
[3] The Infinity Attraction is marketed as an attraction in which visitors walk through a series of “maze-like” rooms, each filled with varying special effects and illusions. Dreamtech describes this as “multi-sensual environments filled with unique special effects, emotive atmospheric sound fields, sensuous aromas, ultra-
groovy music and amazing spectacular illusions”.1 Both Odyssey Sensory Mazes
are attractions in which, similarly, visitors walk through a series of rooms with “darker challenging spaces, quirky physical obstacles and challenges, illusions, lighting effects, scents, sound effects and strange sensations”.2
[4] The directors of Clownfish and CEQT admit to visiting Infinity, and designing Odyssey in just six months following that visit. However, they deny that their work mimics any works of copyright, creates any misleading links between Odyssey and Infinity, or that they are causing any damage to Dreamtech or its
reputation.
1 See Infinity Attraction “Homepage” Odyssey Sensory Maze “Homepage” proposed interim orders are extensive. As framed, they require the closing of three of Odyssey’s sensory rooms, and the removal, across four different rooms, of all tactile effects in one, all floor and ceiling mirrors in another, of the “plasma balls” from one room, and of all mirrors and “infinite hallway” signage. They also request the removal of all signage and promotional material mentioning the three closed rooms, the infinite hallway, or referring to 22 different phrases used in advertising Infinity.
Law
[6] In American Cyanamid Co v Ethicon Ltd,3 the Court formulated a two question test for determining whether an interim injunction should be granted:
(a) whether there is a serious question to be tried in the proceeding; and
(b) where the balance of convenience lies.
[7] McGechan on Procedure states that the purpose of an interim injunction is to protect plaintiffs against injury by violation of their rights, which would not be adequately compensated for later in damages. This is to be balanced against the potential injury to the defendant from being prevented from exercising their legal
rights, for which damages would equally be inadequate.4
[8] In Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd the Court of Appeal confirmed that while those two broad questions in American Cyanamid are the accepted framework for approaching interim injunction applications in New Zealand, they are merely guidelines towards ascertaining the overall justice of the
issue, which is the key focus.5
3 American Cyanamid Co v Ethicon Ltd [1975] AC 396 (HL).
4 Andrew Beck and others McGechan on Procedure (online looseleaf ed, Westlaw NZ) at
[HR7.53.02].
5 Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 140 (CA) at 142.
[9] While the parties must adduce sufficient factual evidence showing there is a serious question to be tried,6 the standard has also been expressed as merely “not frivolous and vexatious”. Lord Diplock said:7
It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial.
Submissions
Plaintiff ’s submissions
[10] Dreamtech pleads three causes of action: breach of copyright, passing off and breach of s 9 of the Fair Trading Act 1986.
[11] Dreamtech argues Infinity as a whole is a work of artistic craftsmanship, which can be the subject of copyright. Counsel argues that Gregg Thompson, the creator of Infinity, is an artist who has created a series of “unique artistic environments unconstrained by functional considerations to provide an entertainment and leisure experience featuring immersive art.” Infinity is an original design, going beyond a concept by being a physical series of rooms.
[12] Dreamtech submits that there was a clear opportunity to copy the work given the admission of the directors of Clownfish and CEQT that they viewed Infinity before creating Odyssey. Dreamtech submits that the lesser time spent by Clownfish and CEQT on developing and implementing the idea demonstrates that they were able to skip time consuming research and development phases. This is said to give rise to a strong inference the works were copied.
[13] In relation to the passing off claim, Dreamtech alleges that there is reputation and goodwill associated with the Infinity brand in New Zealand, due to its visitors from New Zealand and advertising presence here. The alleged misrepresentation is
the implied representation that the Odyssey businesses are connected to Infinity.
6 Re Lord Cable (dec’d) [1977] 1 WLR 7 (ChD) at 19; cited with approval in Andrew Beck and others McGechan on Procedure (online looseleaf ed, Westlaw NZ) at [HR7.53.05].
7 American Cyanamid, above at 3, at 407.
[14] Dreamtech’s claim under the Fair Trading Act 1986 (FTA) is also substantively based on the same facts: the plaintiff submits that there has been conduct in trade which involves misleading representations that there is a link between Infinity and Odyssey.
Defendants’ submissions
[15] The defendants submit that they have independently designed and created the Odyssey attractions, and that the Odyssey attractions are not objectively similar to the alleged copyright works and do not copy a substantial part of the copyright works. Further, the defendants submit that Dreamtech has not sufficiently identified the alleged copyright works or proved the extent of their originality.
[16] In relation to the copyright claim, the defendants reject the suggestion that the works or rooms as a whole are capable of being considered an artistic work, or that Dreamtech is able to prove the existence of copyright or ownership of the work at all as it consists only of concepts and ideas, which are not capable of being copyrighted.
[17] The defendants argue that there can be no assessment of the objective similarity of the works, because the copyright works themselves have not been put into evidence. The actual works must be used as a comparator for assessing copyright infringement. Similarly, the defendants allege that further facts are needed to make out the passing off claim as the plaintiff must show particular features or combinations which constitute a passing off, rather than relying generally on similarities between the attractions. The same problems are highlighted in regards to Dreamtech’s FTA claim.
Discussion
[18] In order to justify an interim injunction, there must be a serious issue to be tried in relation to at least one of the three issues of law alleged: copyright, passing off and under the Fair Trading Act. I will consider each in turn.
Copyright
[19] The major claim is of a breach of copyright by the defendants. To ultimately prove its claim, Dreamtech will need to show it owns copyright in an ‘original’ copyright work, and that this copyright has been infringed under s 29 of the Act.8
Dreamtech alleges these requirements are fulfilled through Odyssey copying Infinity, which constitutes a copyright work of art.
[20] Section 14 of the Act states that copyright exists in original artistic works.9
The “artistic work” category has been described as “broad and controversial”, and applied to a range of industrial products, designs and other objects not easily recognised as art.10
[21] Section 2(1) of the Act defines an artistic work as either:11
(i) A graphic work, photograph, sculpture, collage, or model, irrespective of artistic quality; or
(ii) A work of architecture, being a building or a model for a building; or
(iii) A work of artistic craftsmanship, not falling within subparagraph
(i) or subparagraph (ii) of this definition; …
[22] Dreamtech submits that Infinity is a work of artistic craftsmanship under (iii), which was authoritatively considered by Tipping J in Bonz Group (Pty) Ltd v Cooke.12 In that case, Tipping J in the High Court found that to come within the provision, a work must have some artistic quality,13 and that the author must be a craftsman and an artist, defined, respectively, as a “person who makes something in a
skilful way and takes justified pride in their workmanship” and “a person who produces something with aesthetic appeal”.14 In the High Court of Australia, the test
for whether a work constitutes artistic craftsmanship turned on whether the work’s
8 Henkel KGAA v Holdfast New Zealand Limited [2006] NZSC 102, [2007] 1 NZLR 577.
9 Copyright Act 1994, s 14(1)(a).
10 Susy Frankel, Intellectual Property in New Zealand (2nd edition, LexisNexis, Wellington, 2011)
at 218.
11 Copyright Act, s 2(1)
12 Bonz Group (Pty) Ltd v Cooke [1994] 3 NZLR 216.
13 At 224.
14 At 224.
“artistic expression, in its form, is unconstrained by functional considerations”,
rather than considering its beauty or aesthetic appeal.15
[23] These standards are intrinsically linked to a close assessment of the object in question and its creation. The leading English test, relied on by Bonz Group, has been seen as giving a “lack of clear guidance” about what is considered artistic craftsmanship.16
[24] In this case, the parties disagree substantially on whether Infinity is capable of being considered a work of artistic craftsmanship. Firstly, the defendants consider that Infinity consists of a number of different works, many of which are other types of copyright work (such as models or communication works), and which require separate consideration as to the creation, authors and ownership of each work. What elements should be considered under what subcategory, and why these categories are appropriate, has not been explained.
[25] The decision in Bonz Group allowed the label of “work of artistic craftsmanship” to be used to describe knitted jerseys. Commentators have seen this as specifically bridging both the category of designs and of models, through the garment designs and sample sweaters, into one broad category.17 This analysis was seen as allowing the Court to look at the combination of more than one work, possibly “prov[ing] fruitful in keeping the combination of two artistic works out of the term ‘compilation’ so that the combination … remains an artistic work rather than being artificially lumped into literary works”.18 The approach adopted by Bonz Group in this respect allows a more natural consideration of the claimed ‘artwork’ in its overall comparison to the competing work.
[26] Moreover, Tipping J in Bonz Group specifically addressed the need to look at the work as a whole and ask if it is original, and then to determine “whether such
part as may have been taken by the defendant is a substantial part of the plaintiff’s
15 Burge v Swarbrick [2007] HCA 17; (2007) 232 CLR 336 at [83].
16 Simon Stokes Art and Copyright (2nd edition, Oxford and Portland, Hart Publishing, 2012) at 49.
17 James and Wells Intellectual Property Law in New Zealand (online looseleaf edition, Thomson
Reuters) at COP2.4.
18 At COP2.4.
work”.19 His Honour specifically warned against subdividing the work and determining whether copyright attached to the individual parts.20 Any disadvantage to the defendant was counterbalanced by the fact that the defendant must have used a substantially similar arrangement of the features which make up the work.
[27] As noted by the commentary above, considering the overall work – even if it consists of a number of individual works – is most logical in relation to artworks, which often consist of linked, disparate objects. It could be significantly disadvantageous to artists if they have to prove every aspect of the work’s components is copyrightable based on objections by defendants. Further, in this case, the defendants’ submissions suggest no reason why considering Infinity as a number of works should be favoured over classifying it as an artwork, other than that Infinity are attempting to escape proving copyright in each individual work. This is an insufficient reason to not assess whether there is a serious case that Infinity could come within the definition of a work of artistic craftsmanship.
[28] The defendants also argue that there is no “work” because what is claimed is copyright over bare ideas and concepts, for example, the idea of having a tactile room, or a room filled with bouncy balls. Copyright must be related to a particular expression of an idea, not the idea itself.21 Dreamtech argues that the physical existence of Infinity means it goes beyond a concept, and is a tangible and particular expression of the “immersive rooms” concept.
[29] Although when each component rooms is described, it can be reduced to mere ideas, the copyright claim is in relation to the overall look and expression of those ideas, as expressed in the sum total of Infinity. In the same sense, the concept of having a theme park with different roller-coasters cannot be claimed as copyright, but the particular combination of rides and themes could be expressed in a particular way which is capable of copyright. Dreamtech’s claim, at this stage, appears to be not to an idea, but to the combination of ideas, and the particular means of
expressing those various ideas which give rise to the attraction.
19 Bonz Group, above n 10, at 5.
20 Bonz Group, above n 10, at 5.
21 Susy Frankel, above n 8, at 236 – 239; Beckmann v Mayceys Confectionary Ltd [1995] IPR 543 (CA).
[30] I therefore turn to the major question of whether Infinity, a commercial business centred on attracting visitors to make a profit, can be considered a work of “artistic craftsmanship”. This requires significant factual analysis of the work, particularly for the first stage of the Bonz Group test: whether Infinity has “artistic quality”. In a preliminary proceeding, the analysis is necessarily more truncated
than a full trial would require.22
[31] Looking at the nature of the business, it seems that a series of spaces with differing “environments” that viewers can experience could be considered to have some artistic quality. Given the existing practice of many contemporary artists who create similarly immersive experiences in their art, through which visitors can walk through their art, the view that there is objective artistic quality to creating
immersive spaces is not unreasonable.23 The fact that people walk through Infinity
to experience the spaces and rooms does not alter the ability of the particular ordering of the rooms, arrangement of the experiences to evoke an artistic experience. Although I consider that the commercial element to Infinity could be thought of as being a functional consideration, restricting the artistic expression of the work, it is not a sufficient factor to suggest there is not a serious case to be tried in relation to whether Infinity is an artwork. The work appears to have aesthetic appeal to many visitors. On balance, I consider that there is a serious case that this work could be seen as having some artistic quality.
[32] Whether Mr Thompson is an artist and craftsman requires him to be both a “person who makes something in a skilful way and takes justified pride in their workmanship” and “a person who produces something with aesthetic appeal”.24
Evidently, Mr Thompson takes pride in his workmanship in relation to Infinity. The creation of Infinity required skill in making it, and conceptualising its construction and the overall experience. Mr Thompson’s evidence as to the in-depth development of Infinity supports this view. Bonz Group specifically stated the same person did
not need to both conceive of and execute the work to be a craftsman or artist.25
22 The defendants’ submissions also do not address this aspect of the test.
23 For example, the works of Yayoi Kusama, James Turrell and Olaf Eliasson provide examples of modern immersive art.
24 Bonz Group, above n 10, at 224.
25 Bonz Group, above n 10, at 224.
Mr Thompson therefore does not need to have made the work personally. Infinity further appears to have sufficient “aesthetic appeal”, based on the photographs and its popularity with visitors, to sustain defining Mr Thompson as an artist.
[33] A much fuller exploration of the extent of the functional considerations and choices made within the creation of Infinity, and the role of Mr Thompson as the purported “artist” of Infinity would be necessary to fully determine the classification of this work. As leading textbooks have stated, to determine whether something is a work of artistic question the court will “need to hear expert evidence”.26 On the current evidence, I consider that there is a case that Infinity is a work of artistic craftsmanship, capable of copyright.
[34] The work must also be original. In Wham-O MFG Co v Lincoln Industries Ltd, the Court of Appeal stated that the originality required was in relation to the manner of expressing a thought or idea: “The Act does not require that the work be novel in form but that it should originate from the author and not be copied from another work.”27
[35] The defendants submit that Dreamtech has not provided the court with sufficient information to prove originality, and that the grouping together of the works as one overall artwork has complicated any assessment of originality, as certain elements of the work are copies. The alleged copied items are the objects used within Infinity, such as gloves, brochures, and shoe covers. As noted above, at this preliminary stage, Infinity can be evaluated as one copyright work. It is the particular combination of items and schema that Infinity claims is original and subject to copyright, not the individual items.
[36] Although the defendants are correct that further evidence would likely be adduced at trial, there is no requirement on Dreamtech to fully prove their claim at the interim stage. The evidence provided as to the development of Infinity does detail the design and development process of Mr Thompson in developing Infinity.
This suggests it has originated from him, and there has been no suggestion made that
26 Paul Sumpter Intellectual Property Law: Principles in Practice (2nd ed, CCH, New Zealand,
2013) at [116].
27 Wham-O MFG Co v Lincoln Industries Ltd [1984] 1 NZLR 641 (CA) at 664.
it was copied from another work. There is sufficient evidence as to originality to
support this claim having a “serious question to be tried”.
[37] The ultimate question is, if Infinity does constitute an original work of artistic craftsmanship, whether Odyssey actually infringes that copyright. This requires proof that the work was copied or reproduced without the owner’s permission, in one of the ways listed under s 16 of the Act. Assessing whether a work of artistic craftsmanship has been copied is also fact-specific and inherently comparative. It requires “an examination of the objective similarities of the two works”, and if there is sufficient objective similarity to suggest copying, consideration of whether
sufficient causal connection justifies the ultimate inference of copying.28 The copy
must be of either the whole work or a substantial part of it.29
[38] Assessing the merits of a copyright claim and particularly one which requires looking at a claim of copying based on the cumulative effect of large number of smaller infringements and similarities across the work, on the current evidence, is complex. Examining the objective similarities requires a factual comparison of the relevant works. Inevitably, it will require a significant amount of time and, likely, physical inspection of the competing sites.
[39] The defendants have argued that Dreamtech have offered insufficient evidence to show that the attractions are objectively similar. Although this could, ultimately, lead to the claim failing, the fact that there is not sufficient evidence to fully prove the claim at this interim stage does not necessarily lead to the conclusion that there is not a serious question to be tried overall.
[40] A preliminary assessment of the attractions suggests that the overall schema of Odyssey is very similar to Infinity. The shared theme of walking through immersive spaces, in conjunction with the similarities between those spaces (e.g. their entry tunnels, both having rooms with bouncy swiss balls, with infinite recession spaces, with mirrors and lights to create ‘stargazing’ illusions, with
elastic/bungee cords stretched throughout the room, for example) combined with the
28 Wham-O MFG Co v Lincoln Industries Ltd [1984] 1 NZLR 641 (CA) at 666.
29 Oraka Technologies Ltd v Geostel Vision Ltd [2013] NZCA 111 at [85].
similarities in the approach to displaying the attraction (entry video, gloves, similar colouring in the shop-front and advertising) create objective parallels between Infinity and Odyssey. These indicate that there is some similarity between the attractions, deserving of more extensive comparison. Although significantly more evidence, and likely a physical inspection would need to be brought to prove this element, I consider that on the current evidence there is a reasonable case to be answered as to the overall similarities between the attractions.
[41] Further, the evidence put forward about the visit by the directors of Clownfish and CEQT to Infinity, and the speed of Odyssey’s subsequent creation is significant enough to suggest that the second stage of the test, a sufficient causal connection between the works to sustain an inference of copying could be made out on the facts at trial.
[42] The issue of whether the claimed infringements are of a substantial part of the work is more complex. Partially, this is because it will turn on a question of what, specifically, is found to have been copied at a full trial.30 Any conclusion drawn now is necessarily speculative as to what will be considered to have been copied. However, if the overall schema of Infinity, in conjunction with sufficient identifying features – for example, the colour schemes, language use and large portions of the presentation of the attraction – are found to be copied, these will comprise a substantial part of the work.
[43] On the evidence currently before the Court, I consider that Dreamtech’s
copyright claim raises a serious question to be tried.
Passing off and FTA liability
[44] The other two claims are of passing off, and of liability under the FTA. Whether these claims could succeed at trial also turns on assessing the factual matrix relating to the various attractions, including how they are advertised and described in
relationship with each other.
30 Oraka Technologies, above n 29, at [86].
[45] Passing off requires a misrepresentation, made by a trader in the course of trade, to prospective customers or the ultimate consumers of goods or services supplied by the trader which must be calculated (that is, likely) to injure the business or goodwill of another trader (in the sense that this is a reasonably foreseeable consequence) and which causes actual damage to the business or goodwill of the
trader by whom the action is brought.31
[46] Similarly, a claim under the FTA requires a false or misleading representation, made by a person in trade in connection with the supply of goods. The plaintiff appears to be claiming under both s 13(b) and s 13(e) of the FTA, which prohibits false or misleading representations that the services are of a “particular kind, standard or quality”, or that “goods or services have any sponsorship, approval, endorsement, performance characteristics, accessories, uses, or benefits”.
[47] These causes of action are alleged to be legitimate because the services of Odyssey are being represented to be the same kind and quality as Infinity, and the defendants are representing that their business is associated, affiliated, endorsed or approved by Infinity. This is said to be damaging the goodwill and reputation attached to the Infinity brand.
[48] Clownfish and CEQT are clearly a person, or trader, in trade who supplies goods and services to consumers, which satisfies the initial requirements for both claims. Dreamtech must then show goodwill, actual misleading representations and, for passing off, damage.
[49] There is evidence of Dreamtech having goodwill in Australia, and the close relationship between New Zealand and Australia can be said to extend that goodwill into New Zealand.32 While, again, more evidence would be necessary to prove the claims, there is a reasonable premise to claim goodwill exists. Given the finding above that there is an arguable claim for infringement of copyright, the existence of
false or misleading representations in relation to similarities between the businesses
31 Erven Warnink BV v J Townend & Sons (Hull) Ltd [1979] AC 731 (HL), adopted in New
Zealand in Dominion Rent A Car Ltd v Budget Rent A Car Systems (1970) Ltd [1987] 2 NZLR
395 (CA) at 419.
32 Muzz Buzz Franchising Pty Ltd v JB Holdings (2010) Ltd [2013] NZHC 1599 at [74].
is also tenable. The similarities between the businesses could give rise to a conclusion that they are linked in some way, which implies a similar standard. Whether Odyssey is of a lesser standard that could damage the reputation of Infinity requires further evidence at trial. However, sufficient evidence has been presented indicating there may be differences in the standards between the two companies, an issue which is unaddressed in the defendants’ submissions.
[50] The plaintiff has therefore demonstrated that there is a serious question to be tried on all three causes of action.
Who does the balance of convenience favour?
[51] Assessing the balance of convenience essentially requires considering the relative positions of the defendants and the plaintiff if the status quo is retained until a full trial can be held on the substantive issues. Although I have considered there is a serious case to be heard on the current facts, the balance of convenience is a significant factor toward assessing the overall justice of granting an interim injunction.
[52] Dreamtech argues the balance of convenience is in their favour, because of the strength of their case. It says the defence case does not address any of the substantive claims made against them and is unsupported by evidence. Dreamtech alleges that the defendants ran the risk of an injunction by choosing to take a very similar approach to their attraction, and knew the chance of an application for an injunction would be highly likely to follow.
[53] Dreamtech argues that damages would be inadequate to address the potential harm faced, because there is a substantive risk to the sale of the system for franchising, which has taken years to prepare. They say material harm is currently occurring to the brand reputation of the plaintiff through the poor quality of the defendants’ attractions. When linked with Infinity, this diminishes its brand. Further, they allege that the defendants lack the capacity to pay damages, and that exposes Dreamtech to risk if the Court finds in it’s favour.
[54] The defendants submit that the lack of detail in Dreamtech’s case makes it weak, and that as there is no evidence of actual confusion or other damage, the best approach is to leave Odyssey open until the matter is finally determined. The defendants argue that damages would be an adequate remedy for Dreamtech, especially in the context of this unproven ‘loss’ whereas they would suffer irreparable harm if they were forced to close, due to their smaller size with limited resources. The defendants submit that the proposed interim orders would essentially require closing down the businesses entirely until trial, and they are excessive in nature.
[55] Dreamtech currently has no competing attraction in New Zealand, and as of yet has not provided any information relating to actual confusion or loss of business to Infinity arising from Odyssey. Its concern appears primarily focused on the future loss to the franchise agreement. This points in favour of the defendants, as it suggests that no damage which would be irreparable in future is currently occurring to Dreamtech’s business. Damage to a future franchise would be remedied by the eventual closing or modification of Odyssey, or through damages equal to the loss of the franchise value.
[56] Further, despite the allegations about the defendants’ lack of capacity to pay damages, I consider that the greater risk of harm if the proposed orders are made sits with the defendants. Allowing an interim injunction would be highly likely to ruin their business entirely, over a claim which will require an extensive examination and comparison of the businesses by way of a long trial, and in which Dreamtech is suffering no immediate, irreparable harm. Despite the best attempts of Dreamtech’s lawyers to persuade the Court that Odyssey could continue to function with the interim orders in place, the terms as proposed would in my view pose a significant barrier to ongoing trading.
[57] There are evidently a number of highly subjective legal and factual hurdles to a finding of breach of copyright. Although I have found that there is a serious case to be tried, this is not a case in which the interim argument and evidence establish the case so overwhelmingly in favour of one party that interim relief is required.
[58] Stepping back and looking at the overall justice of the case, I find that the balance of convenience clearly favours the defendants. I consider that this outweighs the fact that there exists a serious question to be tried, and militates decisively against the granting of interim relief in this instance.
Conclusion
[59] Although there is a serious question to be tried on these facts, an interim injunction is not appropriate in these circumstances in light of the balance of convenience and the overall justice of the matter. This application is therefore denied.
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Woolford J
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