Facton Ltd (formerly known as G-Star Raw Denim KFT) v Seo [2011] FCA 344

Facton Ltd (formerly known as G-Star Raw Denim KFT) v Seo [2011] FCA 344

The Court held that, while the Federal Magistrate did not err in admitting the specialised evidence and generally assessing costs, there was error in restricting the number of infringing items considered for general damages. General damages were increased based on a more probable number of at least 20 infringing items. Additional and reputational damages, and cost orders, were otherwise appropriately assessed under correct principles and statutes. Both appeal and cross-appeal largely failed except for the adjustment to general damages, and parties were ordered to bear their own costs on appeal.

Jurisdiction
Australia
Judgment Date
12 April 2011
Procedural Posture
Appeal and Cross Appeal / Judgment on Appeal and Cross Appeal
Outcome
Appeal allowed in part; cross-appeal dismissed.
Legal Topics
['trade Mark Infringement' 'copyright Infringement' 'passing Off' 'expert Evidence' 'compensatory Damages' 'reputation Damages' 'additional Damages' 'costs Orders' 'offer of Compromise']
['intellectual Property' 'evidence' 'damages' 'costs'] ['trade Mark Infringement' 'copyright Infringement' 'passing Off' 'expert Evidence' 'compensatory Damages' 'reputation Damages' 'additional Damages' 'costs Orders' 'offer of Compromise']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Appeal and Cross Appeal / Judgment on Appeal and Cross Appeal

Legal Issues

  1. 1 ['Whether expert evidence was properly admitted under s 79 of the Evidence Act 1995 (Cth)' 'Correct assessment of compensatory, reputational and additional damages for trade mark and copyright infringement' 'Whether costs were correctly ordered under the Federal Court Rules and principles relating to offers of compromise']

Ratio Decidendi

The Court held that, while the Federal Magistrate did not err in admitting the specialised evidence and generally assessing costs, there was error in restricting the number of infringing items considered for general damages. General damages were increased based on a more probable number of at least 20 infringing items. Additional and reputational damages, and cost orders, were otherwise appropriately assessed under correct principles and statutes. Both appeal and cross-appeal largely failed except for the adjustment to general damages, and parties were ordered to bear their own costs on appeal.

Court Disposition

Appeal allowed in part; cross-appeal dismissed.

Orders

  • ['General damages increased to $2,000 based on 20 infringing items.' 'Additional damages of $15,000 and reputational damages of $15,000 affirmed.' 'Previously ordered costs on reserved dates upheld; each party to bear its own costs of appeal and cross-appeal.' 'Parties to bring in orders to give effect to the...