Microsoft Corporation v PC Club Australia Pty Ltd [2005] FCA 1522

Microsoft Corporation v PC Club Australia Pty Ltd [2005] FCA 1522

Copyright in Windows XP Home and Windows XP Pro subsisted and was owned by Microsoft, or validly licensed to Microsoft Licensing, GP, including the right to sue for infringements. The respondents, by reproducing, selling, supplying, and distributing unlicensed copies of Microsoft software and using counterfeit certificates of authenticity, infringed copyright and registered trade marks, and engaged in misleading conduct in trade. The directors and de facto director were personally liable, with the conduct found to be flagrant and deliberate, not innocent, warranting substantial compensatory and additional damages, and injunctive relief.

Jurisdiction
Australia
Judgment Date
28 October 2005
Procedural Posture
Civil / Final Judgment
Outcome
Judgment for applicants. Respondents found liable for copyright and trade mark infringement, misleading/deceptive conduct, and subjected to damages (compensatory and additional), permanent injunctions, delivery up, and costs.
Legal Topics
['copyright Infringement' 'trade Mark Infringement' 'misleading and Deceptive Conduct' 'damages' 'director Liability']
['intellectual Property' 'trade Marks' 'consumer Law'] ['copyright Infringement' 'trade Mark Infringement' 'misleading and Deceptive Conduct' 'damages' 'director Liability']

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Procedural Posture

Civil / Final Judgment

Legal Issues

  1. 1 ['Whether copyright subsisted and was owned by Microsoft in Windows XP Home and Windows XP Pro' 'Whether Microsoft Licensing, GP had standing to sue as exclusive licensee' 'Whether respondents infringed copyright by reproducing and selling unlicensed copies of Microsoft software' 'Whether respondents infringed Microsoft’s registered trade marks' 'Whether respondents engaged in misleading and deceptive conduct under the Trade Practices Act' 'Whether directors and de facto directors were personally liable for infringements' 'Whether infringements were flagrant, justifying additional damages' "Whether an 'innocent infringement' defence under Copyright Act s 115(3) applied"]

Ratio Decidendi

Copyright in Windows XP Home and Windows XP Pro subsisted and was owned by Microsoft, or validly licensed to Microsoft Licensing, GP, including the right to sue for infringements. The respondents, by reproducing, selling, supplying, and distributing unlicensed copies of Microsoft software and using counterfeit certificates of authenticity, infringed copyright and registered trade marks, and engaged in misleading conduct in trade. The directors and de facto director were personally liable, with the conduct found to be flagrant and deliberate, not innocent, warranting substantial compensatory and additional damages, and injunctive relief.

Court Disposition

Judgment for applicants. Respondents found liable for copyright and trade mark infringement, misleading/deceptive conduct, and subjected to damages (compensatory and additional), permanent injunctions, delivery up, and costs.

Orders

  • ['Permanent injunction restraining respondents from further copyright infringements and related acts (including sales, supply, importation, and reproduction without licence) of Windows XP Home and Pro and related programs, media, and COA labels.' 'Mandatory delivery up of infringing Microsoft programs, products, COA...