Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
The Dempsey Group Pty Ltd v Spotlight Pty Ltd [2018] FCA 2016 File number: VID 41 of 2017
Judge: DAVIES J
Date of judgment: 18 December 2018
Catchwords: COPYRIGHT – alleged infringement under ss 36(1), 37 and 38 of the Copyright Act 1968 (Cth) – where applicant and respondent retail bed linen products designed in-house – where copyright claimed in three artistic works comprising surface design of bed linen products – where applicant and respondent commissioned same third party to manufacture bed linen products – whether respondent knowingly instructed manufacturer to copy applicant's proprietary designs – whether applicant established ownership of each artistic work – principles applicable to establishing substantial reproduction – whether respondent reproduced substantial part of any of the artistic works – whether respondent had actual or constructive knowledge of acts constituting infringement – whether innocent infringement defence established DAMAGES – quantum of damages under s 115(2) of the Copyright Act 1968 (Cth) – calculation of damages for loss of profits, loss of reputation, and devaluation of artistic works where evidence unsatisfactory – whether applicant entitled to additional damages under s 115(4) of the Copyright Act 1968 (Cth) – adequacy of steps taken by respondent after being put on notice of infringement claims
Legislation: Copyright Act 1968 (Cth)
Cases cited: Aristocrat Technologies Australia Pty Ltd v DAP Services (Kempsey) Pty Ltd (in liquidation) (2007) 157 FCR 564 Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd (2008) 172 FCR 580 Elwood Clothing Pty Ltd v Cotton On Clothing Pty Ltd (2009) 81 IPR 378; [2009] FCA 633 Enzed Holdings Ltd v Wynthea Pty Ltd (1984) 4 FCR 450 Golden Editions Pty Ltd v Polygram Pty Ltd (1996) 61 FCR 479 IceTV v Nine Network Australia Pty Ltd (2009) 239 CLR 458 Krueger Transport Equipment Pty Ltd v Glen Cameron Storage & Distribution Pty Ltd (No 2) (2008) 79 IPR 81; [2008] FCA 1493 McRae v Commonwealth Disposals Commission (1951) 84 CLR 377 Milankov Designs & Project Management Pty Ltd v di Latte [2018] WASC 14 Milpurrurru & Ors v Indofurn Pty Ltd & Ors (1994) 54 FCR 240 Milwell Pty Ltd v Olympic Amusements Pty Ltd (1999) 85 FCR 436 Norm Engineering Pty Ltd v Digga Australia Pty Ltd (2007) 162 FCR 1 Raben Footwear Pty Ltd v Polygram Records Inc (1997) 75 FCR 88 Review Australia Pty Ltd v Innovative Lifestyle Investments Pty Ltd (2008) 166 FCR 358 Seafolly Pty Ltd v Fewstone Pty Ltd (2014) 313 ALR 41; [2014] FCA 321
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