Lumen Australia Pty Ltd v Frontline Australasia Pty Ltd [2018] FCA 1807

FEDERAL COURT OF AUSTRALIA

Lumen Australia Pty Ltd v Frontline Australasia Pty Ltd [2018] FCA 1807 File number: VID 258 of 2016

Judge: MOSHINSKY J

Date of judgment: 22 November 2018

Catchwords: COPYRIGHT – infringement – trailer wiring harnesses for inclusion in towbar kits – where the first respondent (Frontline) supplied towbar kits to automotive companies – where the first applicant (Lumen) supplied wiring harnesses to Frontline – where Frontline engaged the second and third respondents (Vision) to replicate Lumen's wiring harnesses – where Frontline provided Vision with samples, engineering drawings and the installation instructions for Lumen's products – whether Frontline and Vision infringed Lumen's copyright in the circuit markings on the printed circuit board in the electronic control unit, the engineering drawings and the installation instructions – whether Vision could make out defences under ss 77 and 115(3) of the Copyright Act 1968 (Cth) TRADE MARKS – infringement – installation instructions for towbar kits – where installation instructions included a depiction of a trailer socket with the applicants' name in small font – where the installation instructions were supplied with towbar kits including wiring harnesses from another supplier – whether the first respondent had established, for the purposes of the proviso to s 120(2) of the Trade Marks Act 1995 (Cth), that using the name as it did was not likely to deceive or cause confusion INTELLECTUAL PROPERTY – Circuit Layouts Act 1989 (Cth) – trailer wiring harnesses for inclusion in towbar kits – where the wiring harnesses included an electronic control unit that included a printed circuit board assembly – whether the printed circuit board assembly was an "integrated circuit" for the purposes of the Circuit Layouts Act DAMAGES – additional or exemplary damages – passing off, copyright infringement and trade mark infringement – trailer wiring harnesses for inclusion in towbar kits – where the first respondent (Frontline) supplied towbar kits to automotive companies – where the first applicant supplied wiring harnesses to Frontline – where Frontline substituted wiring harnesses from the second and third respondents – where Frontline did not disclose this to the automotive companies it supplied – where Frontline did not comply with the automotive companies' approval procedures for new parts – where Frontline failed to make discovery in the proceeding of a large number of relevant documents – applicable principles regarding additional or exemplary damages – whether additional or exemplary damages should be ordered and the quantum of any such damages