Woodtree Pty Ltd v Zheng [2007] FCA 1922

Woodtree Pty Ltd v Zheng [2007] FCA 1922

The appellant's label was not a drawing because it consisted substantially of a photograph and text, neither of which was a drawing, and their arrangement did not convert them into a drawing. Leave to plead a compilation was refused because the proposed amendment lacked arguable merit. However, the respondents' photo boxes were identical to the appellant's, often sold side by side, and used strikingly similar packaging get-up with cheaper and less sophisticated labelling at a lower price, making consumers likely to believe the products came from the same source. The respondents therefore engaged in misleading or deceptive conduct, and the appellant could recover gross profit on an...

Jurisdiction
Australia
Judgment Date
07 December 2007
Procedural Posture
Appeal in a Copyright, Passing Off and Trade Practices Dispute Concerning Packaging for Photo Boxes / Appeal From Federal Magistrates Court Judgments Dismissing the Appellant's Claims and Awarding Indemnity Costs
Outcome
Appeal allowed; judgment below set aside; judgment for the appellant against the respondents for $3684.20 plus appropriate interest; submissions directed on interest and costs.
Legal Topics
['artistic Work' 'drawing' 'literary Work' 'compilation' 'misleading or Deceptive Conduct' 'similar Get Up' 'damages for Lost Sales' 'calderbank Offer']
['copyright' 'trade Practices' 'passing Off' 'remedies'] ['artistic Work' 'drawing' 'literary Work' 'compilation' 'misleading or Deceptive Conduct' 'similar Get Up' 'damages for Lost Sales' 'calderbank Offer']

Case Brief

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Procedural Posture

Appeal in a Copyright, Passing Off and Trade Practices Dispute Concerning Packaging for Photo Boxes / Appeal From Federal Magistrates Court Judgments Dismissing the Appellant's Claims and Awarding Indemnity Costs

Legal Issues

  1. 1 ['Whether the appellant\'s packaging label was a "drawing" and therefore an artistic work within s 10(1) of the Copyright Act 1968 (Cth).' 'Whether the appellant should be granted leave on appeal to amend its statement of claim to allege that its label was a literary work as a "compilation".' "Whether the respondents' similar packaging get-up for identical photo boxes was misleading or deceptive, or likely to mislead or deceive, under ss 52 and 53(c) and (d) of the Trade Practices Act 1974 (Cth)." "Whether the appellant's damages could be assessed by reference to gross profit on an equivalent number of sales to the respondents' offending sales."]

Ratio Decidendi

The appellant's label was not a drawing because it consisted substantially of a photograph and text, neither of which was a drawing, and their arrangement did not convert them into a drawing. Leave to plead a compilation was refused because the proposed amendment lacked arguable merit. However, the respondents' photo boxes were identical to the appellant's, often sold side by side, and used strikingly similar packaging get-up with cheaper and less sophisticated labelling at a lower price, making consumers likely to believe the products came from the same source. The respondents therefore engaged in misleading or deceptive conduct, and the appellant could recover gross profit on an...

Court Disposition

Appeal allowed; judgment below set aside; judgment for the appellant against the respondents for $3684.20 plus appropriate interest; submissions directed on interest and costs.

Orders

  • ['The appeal is allowed.' 'The appellant within seven days file and serve submissions as to interest and costs.' 'The respondents file and serve submissions in response within seven days thereafter.']