Flags 2000 Pty Ltd v Smith [2003] FCA 1067

Flags 2000 Pty Ltd v Smith [2003] FCA 1067

The Court found Mr Thomas to be the creator and copyright owner of the Aboriginal flag, and Flags 2000 the exclusive licensee. Mr Smith infringed that copyright by unauthorised sale of the flag after being notified of the applicants' rights. The applicants were entitled to a permanent injunction, damages for infringement, and additional damages, but as Mr Smith's conduct lay at the lower end of flagrancy, additional damages were set at $1,000. The applicants were also awarded costs, with indemnity for costs incurred after Mr Smith maintained his denial of authorship and ownership beyond the directions hearing.

Parties
First Applicant: Flags 2000 Pty Ltd (ACN 050 021 666); Second Applicant: Harold Joseph Thomas; Respondent: David George Errol Smith (trading as 'Flags and Poles')
Jurisdiction
Australia
Judgment Date
07 October 2003
Procedural Posture
Copyright Infringement Proceeding / Final Judgment After Contested Hearing
Outcome
Judgment for the applicants; relief granted including injunction, damages, additional damages, and costs against respondent.
Legal Topics
Copyright, Copyright Infringement, Exclusive Licence, Damages, Additional Damages, Permanent Injunction
Intellectual Property Law Copyright Copyright Infringement Exclusive Licence Damages Additional Damages Permanent Injunction

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Parties

Flags 2000 Pty Ltd (ACN 050 021 666)

First Applicant

Harold Joseph Thomas

Second Applicant

David George Errol Smith (trading as 'Flags and Poles')

Respondent

Procedural Posture

Copyright Infringement Proceeding / Final Judgment After Contested Hearing

Legal Issues

  1. 1 Whether the respondent infringed the copyright in the Aboriginal flag by unauthorised reproduction and sale
  2. 2 Whether Mr Thomas is the author and copyright owner of the Aboriginal flag
  3. 3 Whether the applicants are entitled to damages and additional damages

Ratio Decidendi

The Court found Mr Thomas to be the creator and copyright owner of the Aboriginal flag, and Flags 2000 the exclusive licensee. Mr Smith infringed that copyright by unauthorised sale of the flag after being notified of the applicants' rights. The applicants were entitled to a permanent injunction, damages for infringement, and additional damages, but as Mr Smith's conduct lay at the lower end of flagrancy, additional damages were set at $1,000. The applicants were also awarded costs, with indemnity for costs incurred after Mr Smith maintained his denial of authorship and ownership beyond the directions hearing.

Court Disposition

Judgment for the applicants; relief granted including injunction, damages, additional damages, and costs against respondent.

Orders

  • The respondent is permanently restrained from infringing the copyright of the second applicant in the design for the Aboriginal flag.
  • The respondent is to deliver up within 28 days all infringing copies of the Aboriginal flag in his possession, power, custody or control.