Sony Computer Entertainment Australia Pty Ltd v Kasmara [2003] FCA 1496

FEDERAL COURT OF AUSTRALIA

Sony Computer Entertainment Australia Pty Ltd v Kasmara [2003] FCA 1496 SONY COMPUTER ENTERTAINMENT AUSTRALIA PTY LTD AND ANOR v ANDY KASMARA AND ORS N 1241 of 2002 ALLSOP J 11 DECEMBER 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1241 of 2002

BETWEEN: SONY COMPUTER ENTERTAINMENT AUSTRALIA PTY LTD (aCn 077 583 183) First Applicant Kabushiki kaisha sony computer entertainment Second Applicant

AND: ANDY KASMARA First Respondent JENNY ANGGRAINI Second Respondent RONNY KURNIAWAN Third Respondent PAULINA HALIM (also known as "Paulina Kasmai") Fourth Respondent MJM 2000 PLUS PTY LTD (ACN 086 644 386) Fifth Respondent

JUDGE: ALLSOP J

DATE OF ORDER: 11 DECEMBER 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Each of the Respondents has infringed the Second Applicant's registered Trade Mark No. 642678 (the PlayStation Trade Mark). 2. Each of the Respondents has infringed the Second Applicant's registered Trade Mark No. 642679 (the PS Trade Mark). 3. Each of the Respondents has infringed the Second Applicant's registered Trade Mark No. 800713 (the PS2 Trade Mark). THE COURT ORDERS THAT: 4. Each of the Respondents, whether by himself, herself or itself, his, her or its servants or agents or otherwise, be restrained from infringing the PlayStation Trade Mark by: (a) without the licence of the Second Applicant, supplying or offering to supply in Australia any computer game player or any software, including any computer software or packaging containing any such software, which bears, or in which is stored electronically, any representation of the PlayStation Trade Mark or any mark substantially identical with or deceptively similar to the PlayStation Trade Mark or in relation to which any mark substantially identical with or deceptively similar to the PlayStation Trade Mark is otherwise used; (b) without the licence of the Second Applicant, procuring or inducing any other person to do any of the acts specified in subparagraph 4(a). 5. Each of the Respondents, whether by himself, herself or itself, his, her or its servants or agents or otherwise, be restrained from infringing the PS Trade Mark by: (a) without the licence of the Second Applicant, importing into Australia for sale or for use for the purpose of any trade or business or keeping for sale any computer game player or any software, including any computer software or packaging containing any such software, which bears, or in which is stored electronically, any representation of the PS Trade Mark or any mark substantially identical with or deceptively similar to the PS Trade Mark or in relation to which any mark substantially identical with or deceptively similar to the PS Trade Mark is otherwise used; (b) without the licence of the Second Applicant, procuring or inducing any other person to do any of the acts specified in subparagraph 5(a). 6. Each of the Respondents, whether by himself, herself or itself, his, her or its servants or agents or otherwise, be restrained from infringing the PS2 Trade Mark by: (c) without the licence of the Second Applicant, supplying or offering to supply in Australia any computer game player or any software, including any computer software or packaging containing any such software, which bears, or in which is stored electronically, any representation of the PS2 Trade Mark or any mark substantially identical with or deceptively similar to the PS2 Trade Mark or in relation to which any mark substantially identical with or deceptively similar to the PS2 Trade Mark is otherwise used; (d) without the licence of the Second Applicant, procuring or inducing any other person to do any of the acts specified in subparagraph 6(a). 7. Each of the Respondents be taken to have delivered up to the solicitors for the Applicants upon the making of the Orders, for destruction or disposal at the Applicants' discretion all items removed from the Respondents' premises at 2/38 Park Street Hawthorn (the Respondents' Premises) during execution of the Anton Piller orders on 22 November 2002 as described in the list which comprises Exhibit MAS-1 to the Third Affidavit of Miriam Anne Stiel sworn 5 August 2003 and tendered 4 December 2004. 8. The Respondents jointly and severally account to the Applicants for profits in the sum of $200,000 including interest under section 51A of the Federal Court of Australia Act 1976 (Cth). 9. There be judgment for the Applicants against the Respondents jointly and severally in the sum of $200,000. 10. The Respondents pay the Applicants' costs of the proceedings in the sum of $120,000 being a gross sum pursuant to Order 62 rule 4(2)(c) of the Federal Court Rules. THE COURT NOTES THAT: 11. For a period of 3 months following service of these Orders on the Respondents, the Applicants will not take any steps to destroy or dispose of the items delivered up pursuant to Order 7. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.