Copyright and registered trade marks give the owner the exclusive right to reproduce or use the copyright and trade marks. Unfortunately, not everyone respects this right and it is a common occurrence for people to find their copyright and trade marks infringed.

What kind of relief is there when someone else uses your trade marks or copyright without permission? In March 2016, the Full Federal Court granted injunctive relief to applicants Aristocrat Technologies and related companies, preventing the respondent from exporting products which infringe on the applicants’ copyright and trade marks. So what does this mean?

What Happened?

The appellant companies are a group of subsidiaries of Aristocrat Leisure Limited, which supply gaming technologies and services internationally. Aristocrat Technologies Australia is the first appellant and the company which specifically deals with the design and manufacture of electronic gaming machines and software. ATA owns a number of trade marks in Australia and owns the copyright relating to the computer software and artwork.

Global Gaming Supplies (first respondent) was part of a joint venture with the third respondent through which they were providing refurbished gaming machines to overseas markets.

The group of Aristocrat companies took action against the respondent companies, including Global Gaming Supplies, claiming copyright and trade mark infringement and seeking an injunction against the respondents.

Copyright Infringement

The primary judge found that the respondents were guilty of infringing copyright in the software and artistic works. The court found that the respondents had been burning the computer software onto blank EPROMs and manufacturing fake Aristocrat compliance plates – an aluminium plate affixed to the machine to show that it had been manufactured and was compliant with relevant legislation.

The primary judge awarded damages but did not grant an injunction believing that the damages would be sufficient disincentive and because the infringement had taken place several years before, the injunction would not be effective.

The Full Federal Court allowed the respondents’ appeal and found that even if there was copyright infringement, the assessment of damages was not correct. The Court held that the respondents did not infringe copyright in the compliance plates because the extent to which they were copied from authentic compliance plates was less than the primary judge believed. Copyright infringement occurs where a substantial portion of the copyright work has been reproduced.

The Full Federal Court also disagreed with the primary judge in his finding that an injunction was not appropriate since the infringement had taken place long ago. The Court declared that this should not be a reason to refuse an injunction.

Final Injunctive Relief

Instead, the Full Federal Court examined the facts more closely and found that it was appropriate to grant an injunction against the respondents to stop them from infringing copyright.

In examining the facts and the nature of the respondents’ business, the Court considered that the copyright infringement was blatant and over a long period of time, and engaged in for commercial gain.

Among the factors that the Court considered were the respondent’s attitude and behaviour through the proceedings. The respondents did not put forward any offer or assistance to the applicant or Court. Instead, the respondents put forward a defence that required the applicant to spend time preparing the case for the subsistence of the copyright as opposed to the copyright infringement. The Court found that this kind of behaviour was relevant in considering whether an injunction is the appropriate form of relief, as it looks at whether the acts of potential infringement are likely to continue during the trial.

In this situation, final injunctive relief was found to be appropriate so as to stop a party who intentionally disregarded copyright and would continue to do so even if damages are awarded. An injunctive relief can be granted to protect a copyright owner’s rights, and restrain infringement where damages are unable to.

Trade Mark Claims

ATA owns a number of trade marks including the names “Aristocrat”, “Queen of the Nile”, “Chicken” and “Cash Chameleon”. Many of these trade marks were found to be infringed by exporting the products with these names without licence or consent from ATA, the trade mark owner.

The argument has been considered in previous cases that a trade mark used to indicate a connection between the goods and the registered trade mark owner is not infringing a trade mark. If a trade mark is used to show a connection between the goods and someone who is not the owner of the trade mark, then it may be considered infringement. The respondent argued that they were not using the names as a trade mark because they were not trying to show a connection between their business and the goods.

Both the primary judge and the Full Federal Court rejected the respondents’ argument and emphasised the reasoning in a High Court decision which examined the basic definition of a trade mark. That is that a trade mark is a sign used to distinguish the goods and the supplier from the goods of other suppliers. Here, the refurbished gaming machines exported overseas were not being supplied by the Aristocrats group, although labelling and appearance would suggest otherwise.

Furthermore, the trade marks were used by the respondents in the course of trade and for commercial gain. The Court declared that an injunction be granted and the respondents be restrained from using the trade marks.

Key Takeaways

Copyright and trade mark owners have the exclusive right to use their copyright material and trade marks. It is up to the owners to monitor and make sure others are not infringing. If infringement does occur, the owner of the intellectual property can take action against the owner and may be awarded damages or granted an injunction as relief. If you have any questions about how to protect your intellectual property, get in touch with our IP Lawyers.

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.
Dhanu Eliezer

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