Malleys Ltd v JW Tomlin Pty Ltd [1961] HCA 77

High Court of Australia Taylor, Menzies and Owen JJ. Malleys Ltd v JW Tomlin Pty Ltd [1961] HCA 77

ORDER Appeal allowed. Decree of the Supreme Court of New South Wales discharged and in lieu thereof order that the suit be dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

Nov. 30 Taylor, Menzies and Owen JJ.

The respondent, who was the plaintiff in the suit, on 27 May 1957, obtained registration under the Commonwealth Designs Act 1906 of a design in respect of what is perhaps euphemistically called "Bottom for toilet pan" which McLelland C.J. in Eq. found was valid and had been infringed by the appellant, who was the defendant in the suit. An injunction was granted and an inquiry into damages ordered. The appellant, upon this appeal from this decree, has called into question both findings of his Honour.

The representation of the design depicted upon the certificate of registration shows diagrammatically three views of what is presumably a round piece of metal. The first is a perspective view of the topside of the bottom; the second is a perspective view of the underside of the bottom; and the third is a sectional view of one half of the bottom bisected across its diameter. No dimensions are indicated. From these three drawings it can be gathered that the bottom consists of a circular plate, a diametrical section of which reveals a "J" at its outside edge and, inside the "J" a flat portion, the width of which is about one-third of the diameter of a low central dome which it surrounds. The so-called "J" represents the sectional shape of the circumferential rim or edge. The perspective views give no idea of the height of the dome but from the diametrical section it would seem that at the centre it is two or three times the height of the flat section that surrounds it and ends at the head of the hook of the "J". The height of the shaft of the "J" is approximately half that of the dome. What has been set out is the most that can be gathered from the drawings and the first question is whether there has been disclosed a new or original design for the bottom of a toilet pan.