Melbourne Chinese Press Pty Ltd v Australian Chinese Newspapers Pty Ltd [2004] FCAFC 201

Melbourne Chinese Press Pty Ltd v Australian Chinese Newspapers Pty Ltd [2004] FCAFC 201

The applicants' masthead was deceptively similar to the respondent's registered trade mark given the overall visual impression, especially considering the circumstances of newspaper purchase by Chinese readers, who perceive the title as a single graphic. The applicants' change to a closely matching calligraphic style supported the finding of infringement. The copying of the visual impression and essential elements of the respondent's artistic masthead, even using computer-generated characters, amounted to substantial reproduction for copyright purposes.

Jurisdiction
Australia
Judgment Date
10 August 2004
Procedural Posture
Appeal / Determination on Appeal From a Single Judge Following Leave to Appeal on Liability Only
Outcome
Leave to appeal granted; appeal dismissed with costs
Legal Topics
['trade Mark Infringement' 'copyright Infringement' 'deceptive Similarity' 'substantial Reproduction']
['intellectual Property'] ['trade Mark Infringement' 'copyright Infringement' 'deceptive Similarity' 'substantial Reproduction']

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Procedural Posture

Appeal / Determination on Appeal From a Single Judge Following Leave to Appeal on Liability Only

Legal Issues

  1. 1 ["Whether the applicants' Chinese title infringed the respondent's registered trade mark by being deceptively similar" "Whether the primary judge correctly assessed the respondent's claim of substantial reproduction of its Chinese title for copyright purposes"]

Ratio Decidendi

The applicants' masthead was deceptively similar to the respondent's registered trade mark given the overall visual impression, especially considering the circumstances of newspaper purchase by Chinese readers, who perceive the title as a single graphic. The applicants' change to a closely matching calligraphic style supported the finding of infringement. The copying of the visual impression and essential elements of the respondent's artistic masthead, even using computer-generated characters, amounted to substantial reproduction for copyright purposes.

Court Disposition

Leave to appeal granted; appeal dismissed with costs

Orders

  • ['The application for leave to appeal be allowed' 'The appeal be dismissed with costs']