Facton Ltd v Xu [2015] FCA 66

Facton Ltd v Xu [2015] FCA 66

The Court found that Ms Ma did not exercise control, assert ownership, or take profits in a manner that established liability for trade mark infringement, copyright infringement, misleading or deceptive conduct, or passing off. Her actions, including receipt of proceeds, were found to be the result of arrangements for child support and reimbursement, not participation in the relevant businesses. There was insufficient evidence to show Ms Ma was a joint tortfeasor, knowingly concerned in contraventions, or that she authorised any relevant infringing conduct.

Parties
First Applicant: Facton Ltd; Second Applicant: G-Star Raw CV; Third Applicant: G-Star Australia Pty Ltd ACN 084 011 852; First Respondent: Jia Zhi (John) Xu; Second Respondent: Yun Que Ma; Third Respondent: Bais Bros Pty Ltd ACN 115 249 404; Fourth Respondent: Apparel 23 Pty Ltd ACN 144 882 128
Jurisdiction
Australia
Judgment Date
11 February 2015
Procedural Posture
Civil / Trial Judgment
Outcome
Proceedings against the second respondent (Ms Ma) dismissed
Legal Topics
Trade Mark Infringement, Copyright Infringement, Misleading or Deceptive Conduct, Passing Off, Joint Tortfeasorship
Intellectual Property Trade Marks Copyright Consumer Protection Torts Trade Mark Infringement Copyright Infringement Misleading or Deceptive Conduct +2 more

Case Brief

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Parties

Facton Ltd

First Applicant

G-Star Raw CV

Second Applicant

G-Star Australia Pty Ltd ACN 084 011 852

Third Applicant

Jia Zhi (John) Xu

First Respondent

Yun Que Ma

Second Respondent

Bais Bros Pty Ltd ACN 115 249 404

Third Respondent

Apparel 23 Pty Ltd ACN 144 882 128

Fourth Respondent

Procedural Posture

Civil / Trial Judgment

Legal Issues

  1. 1 Whether the second respondent, Ms Ma, was liable for trade mark infringement under s 120 of the Trade Marks Act 1995 (Cth)
  2. 2 Whether Ms Ma infringed or authorised the infringement of copyright in G-Star logos under the Copyright Act 1968 (Cth)
  3. 3 Whether Ms Ma engaged in misleading and deceptive conduct in contravention of the Fair Trading Act 1987 (NSW), Trade Practices Act 1974 (Cth), or Australian Consumer Law

Ratio Decidendi

The Court found that Ms Ma did not exercise control, assert ownership, or take profits in a manner that established liability for trade mark infringement, copyright infringement, misleading or deceptive conduct, or passing off. Her actions, including receipt of proceeds, were found to be the result of arrangements for child support and reimbursement, not participation in the relevant businesses. There was insufficient evidence to show Ms Ma was a joint tortfeasor, knowingly concerned in contraventions, or that she authorised any relevant infringing conduct.

Court Disposition

Proceedings against the second respondent (Ms Ma) dismissed

Orders

  • The proceedings as against the second respondent be dismissed.
  • The applicants pay the second respondent's costs of the proceedings.