PKT Technologies Pty Ltd (formerly known as Fairlight.Au Pty Ltd) v Peter Vogel Instruments Pty Ltd [2018] FCA 1587

FEDERAL COURT OF AUSTRALIA

PKT Technologies Pty Ltd (formerly known as Fairlight.Au Pty Ltd) v Peter Vogel Instruments Pty Ltd [2018] FCA 1587 File number: VID 784 of 2012

Judge: NICHOLAS J

Date of judgment: 23 October 2018

Catchwords: DAMAGES – damages for wrongful repudiation of agreement by cross-respondent – reliance damages – where agreement would not have been profitable for cross-claimant – where cross-claimant not likely to recoup all of its expenditure – where not possible to determine what proportion of cross-claimant's expenditure would have recouped but for repudiation – reliance damages assessed by reference to cross-claimant's loss of opportunity to recoup its expenditure – cross-respondent awarded 30% of its expenditure in respect of loss of opportunity DAMAGES – damages for copyright infringement under s 115 of the Copyright Act 1968 (Cth) – where damages under s 115(2) assessed at $3,000 – whether there should be an award of additional damages under s 115(4) – where there was a reckless disregard for rights of cross-claimant as copyright owner or a person who had strong grounds for asserting ownership of copyright – additional damages assessed at $50,000 TRADE MARKS – account of profits – where registered trade mark infringed by respondent by offering to supply and supplying applications for use on electronic devices – where trade mark used in relation to sales made both in Australia and other countries – whether profits recoverable by registered owner in respect of sales made in other countries – whether sales made in other countries shown to be attributable to infringing use of registered trade mark in Australia TRADE MARKS – account of profits – whether respondent entitled to allowance for general business overheads when calculating profits payable to applicant for infringement of registered trade mark – where no evidence to show what proportion of overheads attributable to relevant profit – no allowance made