Allam v Aristocrat Technologies Australia Pty Ltd – Copyright – Infringement by Dealing and Damages

The Full Court of the Federal Court of Australia yesterday handed down their decision in Allam v Aristocrat Technologies Australia Pty Ltd [2012] FCAFC 34. The case considers infringement by dealing and damages under s 115 of the Copyright Act 1968.

The consolidated proceeding including 2 appeals and 2 cross-appeals concerned claims of copyright infringement, trade mark infringement and contraventions of the Trade Practices Act 1974 (Cth) in relation to the supply of refurbished gaming machines in Latin America (principally Peru) pursuant to a joint venture arrangement.

The primary judge found that the appellants had infringed the copyright of certain of the respondents but dismissed damages.  The primary judge also declined to grant declaratory or injunctive relief as His Honour also found it unnecessary to decide the questions of trade mark infringement and contravention of the Trade Practices Act 1951 on the basis that if compensatory damages were awarded under s 115(2) of the Copyright Act 1968 (Cth), no further damages would be appropriate

The Full Court of the Federal Court denied the primary judge’s original decision but upheld the dismissal of damages for infringement of copyright under s 115. The respondents (Aristocrat) also submitted on appeal that the primary judge erred in not making a consequential finding on trade mark infringement and awarding the subsequent damages.

The Full Court of the Federal Court of Appeal found that there was “no necessary connection between success or failure on the copyright claims and success or failure on the trade mark claims.” Due to this consideration by the primary judge, both appeals succeeded and the case was remitted to the primary judge for determination of the claims of trade mark infringement.

To access the full text of the case, please click here.

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