Acohs Pty Ltd v Ucorp Pty Ltd (No 2) [2012] FCAFC 67

Acohs Pty Ltd v Ucorp Pty Ltd (No 2) [2012] FCAFC 67

The appellant was substantially successful on the appeal, prevailing on five of the seven issues argued and determined, including issues concerning implied licence, assignment, estoppel, onus of proof, and the pleaded case. The Court therefore allowed the appeal, set aside the primary judge's orders 1 and 2, granted an injunction against the first respondent restraining reproduction, communication to the public, and authorisation of those acts in relation to the Acohs-authored MSDS without the appellant's licence, remitted outstanding issues to the primary judge, and ordered the respondents to pay 70% of the appellant's costs of the appeal.

Jurisdiction
Australia
Judgment Date
14 May 2012
Procedural Posture
Appeal From the Federal Court of Australia / Determined on the Papers After Reasons for Judgment, With Orders Made
Outcome
Appeal allowed; orders 1 and 2 made by the primary judge on 10 June 2010 set aside; injunction granted against the first respondent; outstanding issues remitted; respondents ordered to pay 70% of the appellant's costs of the appeal.
Legal Topics
['injunctive Relief' 'costs of Appeal' 'remitter' 'implied Licence' 'copyright Subsistence' 'assignment of Copyright' 'estoppel by Approbation and Reprobation']
['copyright' 'civil Procedure'] ['injunctive Relief' 'costs of Appeal' 'remitter' 'implied Licence' 'copyright Subsistence' 'assignment of Copyright' 'estoppel by Approbation and Reprobation']

Case Brief

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Procedural Posture

Appeal From the Federal Court of Australia / Determined on the Papers After Reasons for Judgment, With Orders Made

Legal Issues

  1. 1 ["Whether injunctive relief should be granted to restrain reproduction, authorisation of reproduction, and communication to the public of the Acohs-authored MSDS without the appellant's licence." 'Whether the injunction should be made against the second respondent as well as the first respondent.' "What costs order should be made for the appeal in light of the parties' relative success." "Whether an implied licence extended to the first respondent's reproduction, communication or supply of the Acohs-authored MSDS in the absence of a request for safety related purposes." 'Whether copyright in MSDS created by the appellant for Castrol, BP or Dow had been assigned by the appellant to those entities.' 'Whether the appellant was estopped from asserting the absence of an implied licence by the doctrine of approbation and reprobation.' 'Whether the HTML source codes for each Infosafe MSDS and the transcribed MSDS were original literary works.']

Ratio Decidendi

The appellant was substantially successful on the appeal, prevailing on five of the seven issues argued and determined, including issues concerning implied licence, assignment, estoppel, onus of proof, and the pleaded case. The Court therefore allowed the appeal, set aside the primary judge's orders 1 and 2, granted an injunction against the first respondent restraining reproduction, communication to the public, and authorisation of those acts in relation to the Acohs-authored MSDS without the appellant's licence, remitted outstanding issues to the primary judge, and ordered the respondents to pay 70% of the appellant's costs of the appeal.

Court Disposition

Appeal allowed; orders 1 and 2 made by the primary judge on 10 June 2010 set aside; injunction granted against the first respondent; outstanding issues remitted; respondents ordered to pay 70% of the appellant's costs of the appeal.

Orders

  • ['The appeal is allowed.' 'Orders 1 and 2 made by the primary judge on 10 June 2010 are set aside.' 'The first respondent, whether by its servants, agents or otherwise, is restrained from, without the licence of the appellant/applicant: (a) reproducing in a material form the whole or any substantial part of any of...