Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Futuretronics.com.au Pty Limited v Graphix Labels Pty Ltd (No 2) [2008] FCA 746
COPYRIGHT – infringement of copyright – compensatory damages pursuant to s 115(2) Copyright Act 1968 (Cth) – methods of measuring damages – no economic loss established – no injury to reputation established – nominal damages awarded to vindicate invasion of proprietary right COPYRIGHT – infringement of copyright – additional damages pursuant to s 115(4) Copyright Act 1968 (Cth) – matters to be considered – not preconditions – meaning of "flagrancy of infringement" – second respondent knew or was wilfully blind to fact that he should not have used artworks as he did – flagrant infringement COPYRIGHT – infringement of copyright – additional damages pursuant to s 115(4) Copyright Act 1968 (Cth) – conduct after infringement or after respondents informed they had allegedly infringed applicant's copyright – conduct in relation to defence of proceeding – such conduct relevant to costs and not to additional damages CONTRACT LAW – breach of implied term – no damage established – nominal damages awarded Copyright Act 1968 (Cth) s 115 Autodesk Australia Pty Ltd v Cheung (1990) 17 IPR 69 referred to Bailey v Namol Pty Ltd (1994) 53 FCR 102 applied Fenning Film Service Ltd v Wolverhampton, Walsall and District Cinemas Ltd [1914] 3 KB 1171 referred to Flags 2000 Pty Ltd v Smith (2003) 59 IPR 191 followed Futuretronics.com.au Pty Limited v Graphix Labels Pty Ltd [2007] FCA 1621 referred to General Tire & Rubber Co v Firestone Tyre and Rubber Co Ltd [1976] RPC 197 applied Milpurrurra v Indofurn Pty Ltd (1994) 54 FCR 240 referred to MJA Scientifics International Pty Ltd v S C Johnson and Son Pty Ltd (1998) 43 IPR 275 referred to Paterson Zochonis Ltd v Merfarken Packaging Ltd [1983] FSR 273 referred to Pollock v J C Williamson Ltd [1923] VLR 225 referred to Polygram Pty Ltd v Golden Editions Pty Ltd (No 2) 38 IPR 451 referred to Prior v Lansdowne Press Pty Ltd [1977] VR 65 referred to Prior v Sheldon (2000) 48 IPR 301 considered Raben Footwear Pty Ltd v Polygram Records Inc (1997) 75 FCR 88 referred to Ravenscroft v Herbert and New English Library Limited [1980] RPC 193 referred to Sony Entertainment (Australia) Ltd v Smith (2005) 215 ALR 788 considered Sutherland Publishing Co Ltd v Caxton Publishing Co Ltd [1936] 1 Ch 323 referred to Universal Music Australia Pty Ltd v Miyamoto (aka DJ Moto) (2004) 62 IPR 605 considered FUTURETRONICS.COM.AU PTY LIMITED ACN 006 327 386 v GRAPHIX LABELS PTY LTD ACN 005 771 773 and JOHN ATTA
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