Muscat v Best Direction Pty Ltd [2004] FCA 88

FEDERAL COURT OF AUSTRALIA

Muscat v Best Direction Pty Ltd [2004] FCA 88 Copyright Act 1968 (Cth), ss 36, 37, 38 and 77 Muscat v Le [2003] FCA 1540 cited THERESA MUSCAT v BEST DIRECTION PTY LTD and OTHERS V69 OF 2004 SUNDBERG J 13 FEBRUARY 2004 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V69 OF 2004

BETWEEN: THERESA MUSCAT

APPLICANT

AND: BEST DIRECTION PTY LTD (ACN 007 210 835) and OTHERS

RESPONDENTS

JUDGE: SUNDBERG J

DATE OF ORDER: 13 FEBRUARY 2004

WHERE MADE: MELBOURNE

UPON THE APPLICANTS, by their Counsel, undertaking to the Court:

(a) to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the orders hereunder; and (b) to pay the compensation referred to in (a) to the person there referred to,

THE COURT ORDERS THAT:

1. Until the trial of this proceeding or further order, each respondent other than the eleventh respondent, its servants, agents and assigns, be restrained from: (a) reproducing or substantially reproducing the applicant's dressmaking pattern for "Mytiko pants", being exhibit TM1 to the affidavit of Theresa Muscat sworn 27 January 2004; (b) manufacturing, importing into Australia, selling, offering or exposing for sale, distributing or exhibiting in public any reproduction or substantial reproduction of the Offending Products specified in the said affidavit (the Offending Products), including without limiting the generality of the above, the importation, sale or distribution of: (i) women's pants of the type attached as exhibit TM7 to the said affidavit being labelled "Carisma" style number 5384; (ii) women's pants of the type attached as exhibit TM8 to the said affidavit being labelled "Xcepsion" style number W4PN005; and (iii) women's pants of the type attached as exhibit TM9 to the said affidavit being labelled "Face Off" style number FP 0502; 2. Each respondent other than the third and eleventh respondents forthwith deliver up to the applicant's solicitors, Kliger Partners, level 2, 280 Queen Street, Melbourne (or to such other address as may be specified by Kliger Partners), each and every Offending Product within their possession, custody or control, including each of the items specified in Order 1(b) above. 3. The applicant's solicitors retain the property delivered up in accordance with Order 2 until further order. 4. On or before 20 February 2004 each respondent other than the eleventh respondent file and serve an affidavit setting out full details of each Offending Product that was formerly, but is not now, within their possession, custody or control, including details of the number and type purchased or ordered by each respondent, and the number sold or otherwise disposed of, together with the name and address of each commercial purchaser or other purchaser for resale (excluding purchases by individual consumers) to whom such Offending Products were sold or disposed of. 5. The costs of this application be reserved.