Microsoft Corporation v Jiang [2003] FCA 101

FEDERAL COURT OF AUSTRALIA

Microsoft Corporation v Jiang [2003] FCA 101 MICROSOFT CORPORATION AND MICROSOFT PTY LIMITED v KAI-YU JIANG (also known as BRUCE JIANG) trading as MULTIVERSE COMPUTER N789 OF 2002 TAMBERLIN J SYDNEY 6 FEBRUARY 2003

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 789 OF 2002

BETWEEN: MICROSOFT CORPORATION

FIRST APPLICANT

MICROSOFT PTY LIMITED

(ABN 29 002 589 460)

SECOND APPLICANT

AND: KAI-YU JIANG (also known as BRUCE JIANG)

trading as MULTIVERSE COMPUTER

RESPONDENT

JUDGE: TAMBERLIN J

DATE OF ORDER: 6 FEBRUARY 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The steps taken as at 6 February 2003 to bring the hearing of the Applicants' notices of motion dated 13 December 2002 and 21 January 2003 and the proceedings to the attention of the Respondent are deemed to be service of the motions and of the supporting affidavits in accordance with the Federal Court Rules. 2. The Applicants' notice of motion dated 21 January 2003 be heard in the absence of the Respondent. 3. The Respondent, whether by his employees, agents or otherwise, be permanently restrained from: (a) reproducing or authorising the reproduction of the whole or a substantial part of any of the Microsoft Programs without the licence of the First Applicant;

(b) importing into Australia any copy of the whole or a substantial part of any of the Microsoft Programs without the licence of the First Applicant;

(c) selling, offering for sale, supplying, offering to supply or distributing any Infringing Microsoft Program; and (d) authorising, directing or procuring any other company or person to engage in any of the conduct sought to be restrained by sub-paragraphs (a), (b) and (c) above. 4. The Respondent deliver up to the solicitors for the Applicants on oath within 7 days, each Infringing Microsoft Program and any equipment used to make any such infringing copy, in the possession, power, custody or control of the Respondents or any of them. 5. The Respondent, whether by his employees, agents or otherwise, be permanently restrained from infringing the Microsoft Trade Marks by: (a) manufacturing, procuring the manufacture of, importing, purchasing, selling, offering to sell, supplying, offering to supply or distributing any Infringing Microsoft Product; and (b) authorising, directing or procuring any other company or person to engage in any of the conduct sought to be restrained by sub-paragraph (a) above. 6. The Respondent deliver up to the solicitors of the Applicants on oath all Infringing Microsoft Products and any equipment used or intended to be used for making Infringing Microsoft Products, in the possession, custody or control of the Respondent. 7. The Respondent, whether by his employees, agents or otherwise, be permanently restrained from representing in trade or commerce to persons to whom the Respondent supplies or offers to supply any Infringing Microsoft Programs, or Infringing Microsoft Products that: (a) any such product has been made with the licence of the First Applicant; or (b) the Respondent is lawfully entitled to supply any such product; or (c) in the case of Infringing Microsoft Programs and Infringing Microsoft Products, that any such product has been made with the licence of the First Applicant. 8. The Respondent pays the Applicants' costs of the Proceedings in the sum of $40,000. 9. Service of these orders on the Respondent may be effected by the Applicants by forwarding a sealed copy of the orders to 155 Adderton Road, Carlingford, New South Wales. 10. The proceedings are otherwise dismissed. [In these orders: "Infringing Microsoft Products" means any Microsoft Class 9 Products and Microsoft Class 16 Products to which the mark "MICROSOFT" or a mark substantially identical with, or deceptively similar to, the mark "MICROSOFT" has been applied without the consent of the First Applicant; "Infringing Microsoft Program" means a copy of the whole of a substantial part of the any of the Microsoft Programs which has not been made by or with licence of the First Applicant or which has been imported in Australia without the licence of the First Applicant; "Microsoft Class 9 Products" means computer programs, magnetic disks and tapes containing computer programs, computer software, computer hardware, memory boards for use with computers, programmed chips, cartridges embodying computer programs and computer software and firmware embodied in computers or designed to be used therewith; "Microsoft Class 16 Products" means printed instructional and teaching material related to computers and computer software, books, paper and printed matter for use with computer equipment, computer hardware and software manuals, newsletters featuring information about computer hardware and software, paper, paper tape and cards for the recordal of computer programs; "Microsoft Programs" means the computer programs, associated documentation and works identified in the Schedule hereto; and "Microsoft Trade Marks" means any or all of the First Applicant's registered trade marks comprising the mark "MICROSOFT" and numbered 371528(9) and 377674(16) or comprising the mark "WINDOWS" and numbered 576996(9) and 576997(16)].