FREY WILLE GmbH & Co, KG AND ANOTHER v. COMPLEX INDUSTRIAL CO LTD AND ANOTHER

FREY WILLE GmbH & Co, KG AND ANOTHER v. COMPLEX INDUSTRIAL CO LTD AND ANOTHER

The court accepted the Plaintiffs' s121-compliant affidavits as proof of subsistence and ownership of copyright, found the Defendants had the requisite knowledge after receipt of the 5 May 2010 cease and desist letter, concluded the Defendants' bracelets were reproductions of the Plaintiffs' designs, and exercised its discretion to enter judgment for the Plaintiffs and grant the relief sought (paras 1–4 of the amended summons) together with costs to the Plaintiffs on a party-and-party basis.

Citation
FREY WILLE GmbH & Co, KG AND ANOTHER v. COMPLEX INDUSTRIAL CO LTD AND ANOTHER
Parties
1st Plaintiff: Frey Wille GmbH & Co, KG; 2nd Plaintiff: Frey Willie (HK) Limited; 1st Defendant: Complex Industrial Company Limited; 2nd Defendant: 2nd Defendant (director/principal shareholder, unnamed)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
5 December 2011
Case Number
HCA378/2011
Procedural Posture
Copyright Action (secondary Infringement) Under the Copyright Ordinance / Order 14 Summons for Final Injunction and Ancillary Relief; Judgment on Summons After Hearing
Outcome
Judgment entered for the Plaintiffs; orders made in terms of paragraphs 1–4 of the amended summons; costs awarded to Plaintiffs on a party and party basis.
Legal Topics
Secondary Infringement, Injunction, Delivery Up, Affirmations, Damages Enquiry, Section 121 Affidavits, Knowledge
Source Language
EN
Copyright Intellectual Property Civil Procedure Equity Secondary Infringement Injunction Delivery Up Affirmations +3 more

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Parties

Frey Wille GmbH & Co, KG

1st Plaintiff

Frey Willie (HK) Limited

2nd Plaintiff

Complex Industrial Company Limited

1st Defendant

2nd Defendant (director/principal shareholder, unnamed)

2nd Defendant

Procedural Posture

Copyright Action (secondary Infringement) Under the Copyright Ordinance / Order 14 Summons for Final Injunction and Ancillary Relief; Judgment on Summons After Hearing

Legal Issues

  1. 1 Whether Plaintiffs proved subsistence and ownership of copyright by affidavit under s121
  2. 2 Whether Defendants had requisite knowledge of infringement after cease and desist letter dated 5 May 2010
  3. 3 Whether discretionary injunctive relief should be granted on the facts

Ratio Decidendi

The court accepted the Plaintiffs' s121-compliant affidavits as proof of subsistence and ownership of copyright, found the Defendants had the requisite knowledge after receipt of the 5 May 2010 cease and desist letter, concluded the Defendants' bracelets were reproductions of the Plaintiffs' designs, and exercised its discretion to enter judgment for the Plaintiffs and grant the relief sought (paras 1–4 of the amended summons) together with costs to the Plaintiffs on a party-and-party basis.

Court Disposition

Judgment entered for the Plaintiffs; orders made in terms of paragraphs 1–4 of the amended summons; costs awarded to Plaintiffs on a party and party basis.

Orders

  • Final injunction restraining the Defendants from infringing the Plaintiffs' copyright in the specified bracelet designs and products
  • Delivery up to the Plaintiffs of all materials and articles in the Defendants' possession which infringe the Plaintiffs' copyright