Fairlight.AU Pty Ltd v Peter Vogel Instruments Pty Ltd (No 3) [2015] FCA 1422

FEDERAL COURT OF AUSTRALIA

Fairlight.AU Pty Ltd v Peter Vogel Instruments Pty Ltd (No 3) [2015] FCA 1422 Citation: Fairlight.AU Pty Ltd v Peter Vogel Instruments Pty Ltd (No 3) [2015] FCA 1422

Parties: FAIRLIGHT.AU PTY LTD (ACN 104 307 888) v PETER VOGEL INSTRUMENTS PTY LTD (ACN 140 173 397) and PETER VOGEL; PETER VOGEL INSTRUMENTS PTY LTD (ACN 140 173 397) v FAIRLIGHT.AU PTY LTD (ACN 104 307 888) and KFT INVESTMENTS PTY LTD (ACN 005 144 945)

File number: VID 784 of 2012

Judge: EDMONDS J

Date of judgment: 17 December 2015

Catchwords: CONTRACT – agreement for development, manufacture and marketing of two universal instruments providing for the Applicant to supply customised hardware components and software applications and licence for First Respondent to use Applicant's trade mark in connection with marketing and sale of instruments – whether First Respondent's use of Applicant's trade mark in relation to marketing and sale of products other than those the subject of the licence entitled the Applicant to withdraw the licence – whether agreement thereby terminated – whether any defence made out by First Respondent by way of acquiescence or estoppel – whether First Respondent nevertheless entitled to a perpetual licence to use the Applicant's trade mark under the terms of the agreement – whether the First Respondent infringed the Applicant's trade mark in contravention of the Trade Marks Act 1995 (Cth) – cross-claim: on grounds of Applicant's alleged breach of agreements for the production of deficient software and/or delay in doing so – whether Applicant infringed First Respondent's copyright in software developed by the Applicant – whether Cross-respondents engaged in unconscionable conduct