KONAMI KABUSHIKI KAISHA (KONAMI CORPORATION) AND ANOTHER v. INFO POWER LTD

KONAMI KABUSHIKI KAISHA (KONAMI CORPORATION) AND ANOTHER v. INFO POWER LTD

Leave to appeal was granted to the 1st plaintiff on the copyright claim because on the undisputed evidence the defendant had likely used a whole or substantial part of the artistic work and it was highly arguable the judge was wrong to find the fair dealing defence available; leave was refused as to the passing off claim and as to the 2nd plaintiff's copyright claim for want of demonstrated rights or interest.

Citation
KONAMI KABUSHIKI KAISHA (KONAMI CORPORATION) AND ANOTHER v. INFO POWER LTD
Parties
1st Plaintiff: KONAMI KABUSHIKI KAISHA (KONAMI CORPORATION); 2nd Plaintiff: KONAMI DIGITAL ENTERTAINMENT LIMITED; Defendant: INFO POWER LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
19 March 2007
Case Number
HCMP2589/2006
Procedural Posture
Order 14 Application for Injunction and Damages (copyright and Passing Off) Originating in District Court; Leave to Appeal Application in Court of Appeal / Renewed Application for Leave to Appeal Against Dismissal of Order 14 Application
Outcome
Court grants leave to appeal to the 1st plaintiff on the copyright infringement claim; refuses leave on the passing off claim; refuses leave for the 2nd plaintiff on copyright for lack of demonstrated interest.
Legal Topics
Fair Dealing Defence, Summary Judgment (order 14), Leave to Appeal, Ownership and Standing, Evidence Sufficiency
Source Language
EN
Copyright Passing Off Trade Mark Law Civil Procedure Fair Dealing Defence Summary Judgment (order 14) Leave to Appeal Ownership and Standing +1 more

Case Brief

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Parties

KONAMI KABUSHIKI KAISHA (KONAMI CORPORATION)

1st Plaintiff

KONAMI DIGITAL ENTERTAINMENT LIMITED

2nd Plaintiff

INFO POWER LIMITED

Defendant

Procedural Posture

Order 14 Application for Injunction and Damages (copyright and Passing Off) Originating in District Court; Leave to Appeal Application in Court of Appeal / Renewed Application for Leave to Appeal Against Dismissal of Order 14 Application

Legal Issues

  1. 1 Whether reproduction of graphical images from video games constituted infringement of artistic copyright by use of a whole or substantial part
  2. 2 Whether the defendant could rely on the fair dealing defence under s39 of the Copyright Ordinance for reporting/review/criticism
  3. 3 Whether the plaintiffs had produced sufficient evidence to obtain summary judgment under Order 14

Ratio Decidendi

Leave to appeal was granted to the 1st plaintiff on the copyright claim because on the undisputed evidence the defendant had likely used a whole or substantial part of the artistic work and it was highly arguable the judge was wrong to find the fair dealing defence available; leave was refused as to the passing off claim and as to the 2nd plaintiff's copyright claim for want of demonstrated rights or interest.

Court Disposition

Court grants leave to appeal to the 1st plaintiff on the copyright infringement claim; refuses leave on the passing off claim; refuses leave for the 2nd plaintiff on copyright for lack of demonstrated interest.

Orders

  • Grant leave to the 1st plaintiff to appeal the dismissal of the Order 14 application in respect of the copyright infringement claim.
  • Refuse leave to appeal in respect of the passing off claim.