Tivo Inc v Vivo International Corporation Pty Ltd (No 3) [2013] FCA 797

Tivo Inc v Vivo International Corporation Pty Ltd (No 3) [2013] FCA 797

The applicants were entitled to the further affidavit and document orders because the information provided by Vivo did not substantially comply with Allsop CJ's orders and did not enable TiVo to make an informed election between damages and an account of profits. The affidavits were late, materially deficient, lacked relevant documents and product-by-product cost information, contained apparent discrepancies and inconsistencies, and Vivo's position that the affidavits were filed but not read was inconsistent with its reliance on them. Vivo's failure to conscientiously comply with previous orders made the present application necessary, justifying solicitor and client costs.

Jurisdiction
Australia
Judgment Date
30 July 2013
Procedural Posture
Interlocutory Application in Trade Mark Infringement Proceeding / Application for Information to Permit an Informed Election Between Damages and an Account of Profits, and for Costs, After Previous Orders Requiring an Affidavit
Outcome
Interlocutory application granted; further affidavit and document production ordered; first respondent ordered to pay the applicants' costs on a solicitor and client basis.
Legal Topics
['interlocutory Application' 'election Between Damages and Account of Profits' 'compliance With Court Orders' 'affidavit Evidence' 'solicitor and Client Costs' 'trade Mark Infringement Remedies']
['practice and Procedure' 'costs' 'trade Marks'] ['interlocutory Application' 'election Between Damages and Account of Profits' 'compliance With Court Orders' 'affidavit Evidence' 'solicitor and Client Costs' 'trade Mark Infringement Remedies']

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Procedural Posture

Interlocutory Application in Trade Mark Infringement Proceeding / Application for Information to Permit an Informed Election Between Damages and an Account of Profits, and for Costs, After Previous Orders Requiring an Affidavit

Legal Issues

  1. 1 ['Whether the first respondent should be ordered to provide a further affidavit and documents concerning sales, costs, expenses and profits of Vivo products to enable the applicants to make an informed election between damages and an account of profits.' 'Whether the affidavits of Fabio Grassia sworn 6 June 2013 and 24 June 2013 complied with the orders made by Allsop CJ.' "Whether the applicants' costs of the interlocutory application should be paid on a solicitor and client basis."]

Ratio Decidendi

The applicants were entitled to the further affidavit and document orders because the information provided by Vivo did not substantially comply with Allsop CJ's orders and did not enable TiVo to make an informed election between damages and an account of profits. The affidavits were late, materially deficient, lacked relevant documents and product-by-product cost information, contained apparent discrepancies and inconsistencies, and Vivo's position that the affidavits were filed but not read was inconsistent with its reliance on them. Vivo's failure to conscientiously comply with previous orders made the present application necessary, justifying solicitor and client costs.

Court Disposition

Interlocutory application granted; further affidavit and document production ordered; first respondent ordered to pay the applicants' costs on a solicitor and client basis.

Orders

  • ['The First Respondent, by an officer with sufficient personal knowledge of its affairs, file and serve within 28 days an affidavit setting out details of how the Vivo Expenses were calculated or made up, the cost of goods sold of each of the Vivo Products, each class of expenses said to be attributable to the sale...