Microsoft Corporation v TYN Electronics Pty Limited (In Liquidation) [2004] FCA 1307

FEDERAL COURT OF AUSTRALIA

Microsoft Corporation v TYN Electronics Pty Limited (In Liquidation) [2004] FCA 1307 MICROSOFT CORPORATION & ORS v TYN ELECTRONICS PTY LIMITED (IN LIQUIDATION) & ANOR N 925 OF 2002 STONE J 8 OCTOBER 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 925 OF 2002

BETWEEN: MICROSOFT CORPORATION

FIRST APPLICANT

MICROSOFT PTY LIMITED

SECOND APPLICANT

MICROSOFT LICENSING, INC

THIRD APPLICANT

MICROSOFT LICENSING, GP

FOURTH APPLICANT

AND: TYN ELECTRONICS PTY LIMITED (IN LIQUIDATION)

FIRST RESPONDENT

NGAT DOAN

SECOND RESPONDENT JUDGE: STONE J

DATE OF ORDER: 8 OCTOBER 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. In these orders, capitalized terms have the meaning set out in the Annexure to these orders. 2. The respondents and each of them, whether by their servants, 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, selling, offering for sale, supplying, offering to supply or distributing any Infringing Microsoft Program; (c) importing, selling, offering for sale, supplying, offering to supply or distributing any Incomplete Microsoft Program; (d) importing, selling, offering for sale, supplying, offering to supply or distributing any Unaffixed Certificate of Authenticity labels; and (e) authorising, directing or procuring any other company or person to engage in any of the conduct sought to be restrained by the orders in subparagraphs (a), (b), (c) and (d) of this order. 3. The respondents and each of them deliver up to the solicitors for the applicants on oath within 7 days of the date of service of this order upon them: (a) 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 either of them; (b) all Unaffixed Certificate of Authenticity labels in the possession, power;, custody or control of the Respondents or either of them. 4. Judgment be entered for the fourth applicant against the first and second respondents jointly and severally in the sum of $386,000 being damages for infringement of copyright pursuant to s 115(2) of the Copyright Act 1968 (Cth). 5. Judgment be entered for the fourth applicant against the first respondent in the sum of $300,000 for additional damages for infringement of copyright pursuant to s 115(4) of the Copyright Act 1968 (Cth). 6. Judgment be entered for the fourth applicant against the second respondent in the sum of $400,000 for additional damages for infringement of copyright pursuant to s 115(4) of the Copyright Act 1968 (Cth). 7. The respondents and each of them, whether by their servants, 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. 8. The respondents and each of them deliver up to the solicitors for the applicants on oath within 7 days of the date of service of this order upon them: (a) All infringing Microsoft Products in the possession, custody or control of the respondents or either of them; and (b) Any equipment used or intended to be used for making Infringing Microsoft Products in the possession, custody or control of the respondents or either of them. 9. The first respondent, whether by its servants, agents or otherwise, be permanently restrained from representing in trade or commerce to persons to whom the first respondent supplies or offers to supply any Infringing Microsoft Programs, Incomplete Microsoft Programs, or Infringing Microsoft Products: (a) that the first respondent is lawfully entitled to supply any such product; or (b) 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. 10. The second respondent be permanently restrained from aiding, abetting, counselling, procuring or being in any way directly or indirectly a party to or concerned in the conduct sought to be restrained by order 9. 11. The first and second respondents pay the applicants' taxed costs of the proceedings incurred up to and including 7 September 2004 (including any reserved costs). 12. The second respondent pay the applicants' taxed costs of the proceedings incurred on or after 8 September 2004 (including any reserved costs). Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.