Tiny Intelligence Ltd v Resport Ltd - [2008] NZCA 281

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA270/06
[2008] NZCA 281
BETWEENTINY INTELLIGENCE LIMITED

Appellant

ANDRESPORT LIMITED

Respondent

Hearing:1 April 2008

Court:William Young P, Hammond and Ellen France JJ
Counsel:C R Carruthers QC and D J C Russ for Appellant

K W Clay for Respondent

Judgment:5 August 2008 at 4 pm

JUDGMENT OF THE COURT

A        The appeal is dismissed.
B        Costs are reserved.
____________________________________________________________________
REASONS OF THE COURT
(Given by William Young P)
Introduction
[1] Resport Ltd infringed – and in a flagrant way – the copyright of Tiny Intelligence Ltd in a toy sword and toy trumpet and marketed the infringing copies to supporters of the Crusaders rugby team. John Hansen J found against Resport on liability and granted an injunction, see HC CHCH CIV 2003-409-352 21 November 2005. He reserved for further consideration what financial relief to award to Tiny Intelligence. In a second judgment, delivered on 15 November 2006 and reported at [2007] 2 NZLR 263, he awarded Tiny Intelligence $50,000, being his assessment of the profits which had accrued to Resport but dismissed a claim for additional damages under s 121(2) of the Copyright Act 1994.
[2]       Tiny Intelligence now appeals, challenging the dismissal of the claim for additional damages and also the failure of the Judge to award interest.
The dismissal of the claim for additional damages
Overview
[3]       Sections 120 and 121 of the Copyright Act relevantly provide:
120     Infringement actionable by copyright owner
(1)       An infringement of copyright is actionable by the copyright owner.
(2)       In proceedings for infringement of copyright, all such relief by way of damages, injunctions, accounts, or otherwise is available to the plaintiff as is available in respect of the infringement of any other property right.
…
121     Provisions as to damages in infringement proceedings
(1)       Where, in proceedings for infringement of copyright, it is proved or admitted that at the time of the infringement the defendant did not know, and had no reason to believe, that copyright existed in the work to which the proceedings relate, the plaintiff is not entitled to damages but, without prejudice to the award of any other remedy, is entitled to an account of profits.
(2)       In proceedings for infringement of copyright, the court may, having regard to all the circumstances and in particular to—
(a)       the flagrancy of the infringement; and
(b)      any benefit accruing to the defendant by reason of the infringement,—

award such additional damages as the justice of the case may require.
…

[4] Tiny Intelligence relied on s 121(2). It established that the infringement was flagrant and sought “additional damages” as well as an account of the profits made by Resport. John Hansen J held that because Tiny Intelligence had elected an account of profits, it was precluded from also claiming additional damages. The Judge followed the House of Lords’ decision in Redrow Homes Ltd v Bett Brothers Plc [1999] 1 AC 197,…

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 Tiny Intelligence Ltd v Resport Ltd

Details

AGLC: Tiny Intelligence Ltd v Resport Ltd [2008] NZCA 281
Case: [2008] NZCA 281
Decision Date: 5 August 2008

CaseChat Overview and Summary

Tiny Intelligence Ltd, the copyright owner of certain toy products, successfully sued Resport Ltd for copyright infringement in the High Court, obtaining an injunction and an award of $50,000 in profits. Tiny Intelligence sought additional damages and interest in the Court of Appeal, arguing the High Court judge wrongly ruled it could not claim both damages and profits. The Court of Appeal considered whether the Copyright Act allowed additional damages in conjunction with a claim for profits. It found the House of Lords' decision in Redrow Homes Ltd v Bett Brothers Plc, which interpreted similar UK legislation, was applicable to New Zealand's Act. The Court of Appeal held that additional damages could only be awarded when damages were sought, not profits. It dismissed Tiny Intelligence's appeal but noted Resport agreed to pay interest after the hearing, obviating the need for a formal order on costs.

Orders