NINTENDO CO LTD v. LIK SANG INTERNATIONAL LTD AND OTHERS

NINTENDO CO LTD v. LIK SANG INTERNATIONAL LTD AND OTHERS

Summary judgment was proper because on the evidence there was no real prospect of the defendants defeating liability: the Game Boy products were issued in a copy-protected form within s.273, the defendants' Flash products were specifically designed and predominantly used to circumvent that protection, the corporate defendants had no viable defence, the personal defendants were personally liable as active, knowing participants and profited from the infringement, and an interim payment of $5,000,000 was a reasonable conservative minimum of likely recoverable damages.

Citation
NINTENDO CO LTD v. LIK SANG INTERNATIONAL LTD AND OTHERS
Parties
1st Plaintiff: Nintendo Co. Ltd; 2nd Plaintiff: Nintendo of America Inc; 1st Defendant: Lik Sang International Limited; 2nd Defendant: Visoly Limited; 3rd Defendant: Ahlswede Nils; 4th Defendant: Alexander Peter Kampl
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
29 May 2003
Case Number
HCA3584/2002
Procedural Posture
Copyright Infringement / Summary Judgment Application Under Section 273 of the Copyright Ordinance / Summary Judgment Hearing and Reasons for Judgment
Outcome
Summary judgment entered for the plaintiffs against all four defendants; interim payment ordered.
Legal Topics
Circumvention of Copy Protection, Secondary Liability for Devices Enabling Infringement, Directors' Personal Liability, Interim Payment for Damages
Source Language
EN
Copyright Intellectual Property Civil Procedure Company Law Circumvention of Copy Protection Secondary Liability for Devices Enabling Infringement Directors' Personal Liability Interim Payment for Damages

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Parties

Nintendo Co. Ltd

1st Plaintiff

Nintendo of America Inc

2nd Plaintiff

Lik Sang International Limited

1st Defendant

Visoly Limited

2nd Defendant

Ahlswede Nils

3rd Defendant

Alexander Peter Kampl

4th Defendant

Procedural Posture

Copyright Infringement / Summary Judgment Application Under Section 273 of the Copyright Ordinance / Summary Judgment Hearing and Reasons for Judgment

Legal Issues

  1. 1 Whether plaintiffs' Game Boy products were issued in a form that is copy-protected within the meaning of s.273(4) of the Copyright Ordinance
  2. 2 Whether defendants' Flash Linker/Flash Card devices were devices or means specifically designed or adapted to circumvent copy-protection under s.273(2)(a)
  3. 3 Whether the corporate defendants (1st and 2nd) have an arguable defence to liability under s.273

Ratio Decidendi

Summary judgment was proper because on the evidence there was no real prospect of the defendants defeating liability: the Game Boy products were issued in a copy-protected form within s.273, the defendants' Flash products were specifically designed and predominantly used to circumvent that protection, the corporate defendants had no viable defence, the personal defendants were personally liable as active, knowing participants and profited from the infringement, and an interim payment of $5,000,000 was a reasonable conservative minimum of likely recoverable damages.

Court Disposition

Summary judgment entered for the plaintiffs against all four defendants; interim payment ordered.

Orders

  • Summary judgment entered in favour of the plaintiffs against the 1st to 4th defendants
  • Interim payment of 5,000,000 (court referred to $5,000,000 as a conservative minimum)