Dias Aluminium Products Pty Ltd v Ullrich Aluminium Pty Ltd (No. 2) [2005] FCA 1400

Dias Aluminium Products Pty Ltd v Ullrich Aluminium Pty Ltd (No. 2) [2005] FCA 1400

Because neither party was wholly successful but a greater proportion of the time and forensic effort was directed to the applicant's two successful design infringement claims, while the respondent succeeded in respect of the door jamb and tracking device, the proper exercise of the costs discretion was to order the respondent to pay 40% of the applicant's party-party costs of the claim and cross-claim. Destruction under supervision was appropriate for infringing products, and information by affidavit and accounts should be provided before any further discovery for the applicant's election between damages and an account of profits.

Jurisdiction
Australia
Judgment Date
04 October 2005
Procedural Posture
Design Infringement Proceeding and Cross Claim; Costs and Consequential Orders / Post Judgment Orders After Decision on Claim and Cross Claim Delivered on 14 September 2005
Outcome
The Court made declarations of infringement for Design 115996 and Design 123036, declared Design 116380 invalid, ordered expungement of Design 116380, granted injunctions and destruction orders, required information to assist the applicant's election between damages and an account of profits, and ordered the...
Legal Topics
['registered Design Infringement' 'expungement From Register of Designs' 'injunctions' 'delivery Up or Destruction of Infringing Products' 'election Between Damages and Account of Profits' 'discovery in Aid of Election' 'apportionment of Costs After Mixed Success']
['intellectual Property' 'designs' 'civil Procedure' 'costs'] ['registered Design Infringement' 'expungement From Register of Designs' 'injunctions' 'delivery Up or Destruction of Infringing Products' 'election Between Damages and Account of Profits' 'discovery in Aid of Election' 'apportionment of Costs After Mixed Success']

Case Brief

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Procedural Posture

Design Infringement Proceeding and Cross Claim; Costs and Consequential Orders / Post Judgment Orders After Decision on Claim and Cross Claim Delivered on 14 September 2005

Legal Issues

  1. 1 ['Whether, after mixed success on the claim and cross-claim, the Court should depart from the usual order that costs follow the event and apportion costs.' 'Whether infringing products should be delivered up or destroyed under supervision.' 'Whether discovery should be ordered to assist the applicant to elect between damages and an account of profits, or whether other information should first be provided.']

Ratio Decidendi

Because neither party was wholly successful but a greater proportion of the time and forensic effort was directed to the applicant's two successful design infringement claims, while the respondent succeeded in respect of the door jamb and tracking device, the proper exercise of the costs discretion was to order the respondent to pay 40% of the applicant's party-party costs of the claim and cross-claim. Destruction under supervision was appropriate for infringing products, and information by affidavit and accounts should be provided before any further discovery for the applicant's election between damages and an account of profits.

Court Disposition

The Court made declarations of infringement for Design 115996 and Design 123036, declared Design 116380 invalid, ordered expungement of Design 116380, granted injunctions and destruction orders, required information to assist the applicant's election between damages and an account of profits, and ordered the...

Orders

  • ['The respondent infringed the monopoly in Australian design registration number 115996 by applying an obvious imitation to wardrobe door panel stiles and by selling, offering for sale and keeping for sale such stiles without licence or authority.' 'The respondent infringed the monopoly in Australian design...