Sony Computer Entertainment Australia Pty Ltd v Stirling [2001] FCA 784

Sony Computer Entertainment Australia Pty Ltd v Stirling [2001] FCA 784

The respondent was aware of the proceeding and elected not to appear or defend it. On the affidavit evidence, the applicants established the pleaded facts of trade mark infringement and contravention of the Fair Trading Act 1999 (Vic). It was therefore appropriate to make declarations of infringement and contravention, injunctions restraining future infringement and contravention, and discovery and related orders to allow the applicants to elect between damages and an account of profits. The Court declined to declare breach of the 10 December 1999 undertaking because such a declaration had no utility and no enforceable contractual obligation had been pleaded.

Jurisdiction
Australia
Judgment Date
15 June 2001
Procedural Posture
Proceeding for Trade Mark Infringement and Contraventions of the Fair Trading Act 1999 (vic) Concerning CD Roms Containing Software for Use With Computer Game Players. / Notice of Motion for Judgment by Default of Appearance and Defence Under Order 11 Rule 23 of the Federal Court Rules; Liability Determined Before Pecuniary Relief.
Outcome
Default orders and declarations made for the applicants on liability; declaration concerning breach of undertaking declined; pecuniary relief left for later determination.
Legal Topics
['registered Trade Mark Infringement' 'misleading or Deceptive Conduct' 'false Representations as to Sponsorship, Approval or Affiliation' 'default Judgment' 'injunctions' 'discovery' 'delivery Up' 'account of Profits or Damages']
['intellectual Property' 'trade Marks' 'consumer Protection' 'civil Procedure'] ['registered Trade Mark Infringement' 'misleading or Deceptive Conduct' 'false Representations as to Sponsorship, Approval or Affiliation' 'default Judgment' 'injunctions' 'discovery' 'delivery Up' 'account of Profits or Damages']

Case Brief

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Procedural Posture

Proceeding for Trade Mark Infringement and Contraventions of the Fair Trading Act 1999 (vic) Concerning CD Roms Containing Software for Use With Computer Game Players. / Notice of Motion for Judgment by Default of Appearance and Defence Under Order 11 Rule 23 of the Federal Court Rules; Liability Determined Before Pecuniary Relief.

Legal Issues

  1. 1 ['Whether the respondent infringed the second applicant\'s registered trade mark number 642678 consisting of the mark "PlayStation".' 'Whether the respondent infringed the second applicant\'s registered trade mark number 642679 consisting of the mark "PS".' 'Whether the respondent breached ss 9, 10 and 12 of the Fair Trading Act 1999 (Vic).' "Whether judgment and orders should be made in the respondent's absence under Order 11 Rule 23 of the Federal Court Rules." 'Whether a declaration should be made that the respondent breached an undertaking given on 10 December 1999.']

Ratio Decidendi

The respondent was aware of the proceeding and elected not to appear or defend it. On the affidavit evidence, the applicants established the pleaded facts of trade mark infringement and contravention of the Fair Trading Act 1999 (Vic). It was therefore appropriate to make declarations of infringement and contravention, injunctions restraining future infringement and contravention, and discovery and related orders to allow the applicants to elect between damages and an account of profits. The Court declined to declare breach of the 10 December 1999 undertaking because such a declaration had no utility and no enforceable contractual obligation had been pleaded.

Court Disposition

Default orders and declarations made for the applicants on liability; declaration concerning breach of undertaking declined; pecuniary relief left for later determination.

Orders

  • ['In the absence of the respondent, the trial proceed generally.' 'The hearing and determination of liability take place before the hearing on all issues of pecuniary relief.' "The respondent has infringed the second applicant's registered trade mark number 642678." "The respondent has infringed the second...