Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Review Australia Pty Ltd v New Cover Group Pty Ltd [2008] FCA 1589
REGISTERED DESIGN – the registered owner of a design registered under the Designs Act 2003 (Cth) of a ladies' garment (Applicants' Design) – respondent allegedly designed ladies' garment in Australia and had them made in China for importation and wholesale in Australia – whether the respondent infringed Applicants' Design – meaning of "the informed user" – relevance of colour in claimed design rights – substantial similarity in overall impression between respondent's garments and the Applicants' Design – claim of design infringement upheld
VALIDITY OF REGISTERED DESIGN – whether registration of Applicants' Design valid as being new and distinctive when compared with the prior art base before priority date – informed user would not consider Applicants' Design to be substantially similar in overall impression to designs published prior to registration priority date – Applicants' Design valid
DAMAGES – whether damages for actual sales loss or diminution in value of design should be awarded – whether defence under s 75(2) is available – whether additional damages under s 75(3) should be awarded
Designs Act 2003 (Cth) ss 4, 5, 7, 8, 10, 15, 16, 19, 21, 71(1), 71(3), 75(2), 75(3), 75(4), 75(5), 93(3)(a) Acts Interpretation Act 1901 (Cth) s 21(1)(b) Evidence Act 1995 (Cth) s 97
Review 2 Pty Ltd v Redberry Enterprise Pty Ltd [2008] FCA 1588 referred to Woodhouse UK Plc v Architectural Lighting Systems [2006] RPC 1 followed Proctor & Gamble Co v Reckitt Benckiser (UK) Ltd [2006] EWHC 3154; [2007] FSR 13 followed Proctor & Gamble Company v Reckitt Benckiser (UK) Ltd [2007] EWCACIV 936; (2007) 73 IPR 605 followed Application by Pauline Ann Walton to invalidate UK Registered Design in the name of Zap Ltd (UK IPO, 0-027-07, 22 January 2007) discussed Re Application in the name ofApple Computer Inc (2007) 74 IPR 164 considered Icon Plastics Pty Ltd [2007] ADO 2 cited Prior v Lansdowne Press Pty Ltd [1977] VR 65 referred to Milpurrurru v Indofurn Pty Ltd (1994) 30 IPR 209 referred to Review Australia Pty Ltd v Innovative Lifestyle Investments Pty Ltd [2008] FCA 74 referred to Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 cited Hella-Australia Pty Ltd v Quinton Hazell (Aust) Pty Ltd (1967) 10 FLR 86 discussed Carnival Cruise Lines Inc v Sitmar Cruises Ltd (1994) 120 ALR 495 cited Polyaire Pty Ltd v K-Aire Pty Ltd (2005) 221 CLR 287 cited Aristocrat Technologies Australia Pty Ltd v DAP Services (Kempsey) Pty Ltd (2007) 157 FCR 564 referred to Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd (2006) 70 IPR 517 cited Microsoft Corporation v Goodview Electronics Pty Ltd (2000) 49 IPR 587 referred to Jones v Dunkel (1959) 101 CLR 298 cited Microsoft Corporation v Ezy Loans Pty Ltd (2004) 63 IPR 54 referred to REVIEW AUSTRALIA PTY LTD (ACN 122 295 836) v NEW COVER GROUP PTY LTD (ACN 111 991 596) and MACO COLLECTION PTY LTD (ACN 087 502 878) AND BIGUANG PAN
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