Review 2 Pty Ltd v Redberry Enterprise Pty Ltd [2008] FCA 1588

Review 2 Pty Ltd v Redberry Enterprise Pty Ltd [2008] FCA 1588

The Redberry garment, considered by reference to the informed user standard, was not substantially similar in overall impression to the registered Review Design when regard was had to the overall appearance, the importance of skirt design and pattern (including colour), constraints of prior art, and the freedom to innovate. Therefore, Redberry did not infringe the Review Design and the application was dismissed. The Review Design was found to be valid as compared to the prior art base.

Parties
First Applicant/first Cross Respondent: Review 2 Pty Ltd (In Liquidation) ACN 067 634 360; Second Applicant/second Cross Respondent: Review Australia Pty Ltd ACN 122 295 836; Respondent/cross Claimant: Redberry Enterprise Pty Ltd ACN 093 946 260
Jurisdiction
Australia
Judgment Date
24 October 2008
Procedural Posture
Design Infringement and Cross Claim for Invalidity / Judgment at Trial
Outcome
Applicants' infringement action dismissed; respondent's invalidity cross-claim dismissed.
Legal Topics
Designs Act, Design Infringement, Registered Designs, Validity, Damages
Intellectual Property Law Designs Act Design Infringement Registered Designs Validity Damages

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Parties

Review 2 Pty Ltd (In Liquidation) ACN 067 634 360

First Applicant/first Cross Respondent

Review Australia Pty Ltd ACN 122 295 836

Second Applicant/second Cross Respondent

Redberry Enterprise Pty Ltd ACN 093 946 260

Respondent/cross Claimant

Procedural Posture

Design Infringement and Cross Claim for Invalidity / Judgment at Trial

Legal Issues

  1. 1 Whether Redberry infringed Review Design under the Designs Act 2003 (Cth)
  2. 2 Whether the Review Design is valid as new and distinctive compared with prior art
  3. 3 Appropriate approach to assessment of damages if infringement found

Ratio Decidendi

The Redberry garment, considered by reference to the informed user standard, was not substantially similar in overall impression to the registered Review Design when regard was had to the overall appearance, the importance of skirt design and pattern (including colour), constraints of prior art, and the freedom to innovate. Therefore, Redberry did not infringe the Review Design and the application was dismissed. The Review Design was found to be valid as compared to the prior art base.

Court Disposition

Applicants' infringement action dismissed; respondent's invalidity cross-claim dismissed.

Orders

  • The application be dismissed.
  • The cross-claim be dismissed.