Microsoft Corporation v Blanch [2002] FCA 895

Microsoft Corporation v Blanch [2002] FCA 895

The respondents infringed Microsoft trade marks by selling or supplying products and a computer display using signs substantially identical with Microsoft registered trade marks without licence. They infringed copyright in Microsoft Windows 95 and Microsoft Windows 98 by reproducing or authorising reproduction of those programs on a computer hard drive and compact disks, and knew or ought to have known that the Windows 95 disk was infringing given its markedly below-market sale price. Displaying the counterfeit disk for public sale was conduct liable to mislead the public under the Fair Trading Act 1999 (Vic). Injunctive relief was appropriate, but the respondents should not be exposed to...

Jurisdiction
Australia
Judgment Date
18 July 2002
Procedural Posture
Copyright, Trade Mark and Fair Trading Infringement Proceeding / Motion for Final Relief After Respondents Failed to Appear and Failed to Comply With Directions
Outcome
Applicants succeeded in establishing trade mark infringement, copyright infringement in Microsoft Windows 95 and Microsoft Windows 98, and a limited contravention of the Fair Trading Act 1999 (Vic); damages were not pressed; injunctive relief and costs were to be reflected in short minutes of orders.
Legal Topics
['copyright in Computer Programs' 'trade Mark Infringement by Counterfeit Software' 'misleading Conduct Under Fair Trading Act 1999 (vic)' 'default or Undefended Proceeding' 'permanent Injunctive Relief' 'costs']
['copyright' 'trade Marks' 'fair Trading' 'civil Procedure' 'injunctions'] ['copyright in Computer Programs' 'trade Mark Infringement by Counterfeit Software' 'misleading Conduct Under Fair Trading Act 1999 (vic)' 'default or Undefended Proceeding' 'permanent Injunctive Relief' 'costs']

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Procedural Posture

Copyright, Trade Mark and Fair Trading Infringement Proceeding / Motion for Final Relief After Respondents Failed to Appear and Failed to Comply With Directions

Legal Issues

  1. 1 ["Whether the respondents infringed Microsoft Corporation's registered trade marks by supplying software disks and a computer loaded with Microsoft programs." 'Whether the respondents infringed copyright in Microsoft Windows 95 and Microsoft Windows 98 by reproducing or authorising reproduction of those programs.' 'Whether displaying for sale and selling counterfeit Microsoft software contravened ss 10 and 11 of the Fair Trading Act 1999 (Vic).' 'Whether broad injunctions should be granted in respect of Microsoft trade marks and computer programs.' 'What costs order should be made.']

Ratio Decidendi

The respondents infringed Microsoft trade marks by selling or supplying products and a computer display using signs substantially identical with Microsoft registered trade marks without licence. They infringed copyright in Microsoft Windows 95 and Microsoft Windows 98 by reproducing or authorising reproduction of those programs on a computer hard drive and compact disks, and knew or ought to have known that the Windows 95 disk was infringing given its markedly below-market sale price. Displaying the counterfeit disk for public sale was conduct liable to mislead the public under the Fair Trading Act 1999 (Vic). Injunctive relief was appropriate, but the respondents should not be exposed to...

Court Disposition

Applicants succeeded in establishing trade mark infringement, copyright infringement in Microsoft Windows 95 and Microsoft Windows 98, and a limited contravention of the Fair Trading Act 1999 (Vic); damages were not pressed; injunctive relief and costs were to be reflected in short minutes of orders.

Orders

  • ['The applicants bring in short minutes of orders which reflect these reasons for judgment.' "The respondents are to pay the applicants' costs up to and including 26 April 2002 but not thereafter." 'Such costs are not to be reduced under O 62 r 36A(1) of the Federal Court Rules.']