Pioneer Electronics Australia Pty Ltd v Lee - [2000] FCA 1926 - FCA 2000 case summary — Zoe

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Pioneer Electronics Australia Pty Ltd v Lee

[2000] FCA 1926

Federal Court of Australia|2000-07-01|Before: Sundberg J

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Court

Federal Court of Australia

Decision date

2000-07-01

Before

Sundberg J

Source

Original judgment source is linked above.

Judgment (75 paragraphs)

[1]

BACKGROUND 1 This case concerns the importation and sale of a number of Pioneer brand Digital Video Disk (DVD) players by the second respondent ("Alricarben"). The DVD players were acquired from retailers in Hong Kong and Japan and were sold to purchasers in Australia between March and November 1997. The DVD players were manufactured for use in Japan, but those acquired after July 1997 were modified in Hong Kong for use with Australian DVDs, and sold with a transformer for conversion from Australian electricity standards to Japanese electricity standards. The second applicant ("Pioneer") claims that the importation and sale breached its copyright. The applicants also claim that the sales were misleading because they gave the impression that the applicants approved or sponsored them. The first applicant ("Pioneer Australia") claims that Alricarben passed off its business as having Pioneer Australia's approval or sponsorship. There is also a complaint that the DVD players were unfit for sale in Australia, and that the players, or more precisely the transformers with which they were sold, were dangerous.

[2]

FINDINGS OF FACT 2 In order to regulate the distribution of DVD players around the world, the manufacturers have developed a system whereby the players will only play discs they have been programmed to play. The discs are programmed in different codes for different geographical regions, and a player is capable of decoding only the DVDs for the region in which it is sold. Japan is region 2 and Australia is region 4. In order adequately to satisfy demand for new technologies, Pioneer staggered its release of DVD players in different parts of the world. At the time the importation of Pioneer players the subject of this proceeding took place, Pioneer had not yet released DVD players onto the Australian market. As a result, Alricarben was bringing into Australia DVD players that had not yet been released here, and would in any case have been inappropriate for any discs that were later sold within the Australian region. 3 In November 1996 the first respondent ("Lee"), a director of Alricarben, read in an electrical goods magazine an advertisement for Pioneer DVD players inserted by an organisation called "Ramsons" based in Osaka, Japan. He contacted Ramsons, and on behalf of Alricarben ordered a Pioneer DVD player, branded "DV-7", to be shipped to him in Sydney. Lee received the DV‑7 player in December 1996, and after using it for about four weeks decided to sell it. On behalf of Alricarben, he placed an advertisement in the Sydney Trading Post which ran for eight to ten weeks. The DVD player was sold to Alex Fiedler ("Fiedler") on 10 March 1997. Fiedler attended Lee's home in Epping to inspect the DVD player. He noted a number of DVD players at the premises, as well as compact disc and laser disc players. The players were made by various corporations including Pioneer, Sony, Panasonic and Toshiba. Lee told Fiedler the DV-7 player was a region 2 player. This meant that when Australian DVD titles were released, the DV-7 player would be unable to play them, unless the player was modified by the installation of a "mod chip", a chip that would overcome the regional coding referred to in par 2. Lee told Fiedler that the player and the transformer had 12 month warranties, and that he should return the player to him if he had any problems. If Lee could not have the player repaired in Australia, he would ship it back to his supplier for repair, and Fiedler would be charged the freight costs. Fiedler purchased the DV-7 player and a transformer for $1050. The player came in a Pioneer branded box with Japanese writing on it. A couple of months later Fiedler exchanged the Pioneer player for a Panasonic DVD player manufactured for the American market. Lee continued to advertise the sale of electrical goods. These included advertisements published between March and December 1997 for Pioneer DVD players coded to the Japanese region. 4 Alricarben also sold imported DVDs. These sales came to the attention of the Australian Film and Video Security Office (AFVSO), which acts on behalf of the Motion Picture Association to prevent film and video piracy in Australia. AFVSO requested one of its agents, James Slater ("Slater"), to investigate Lee's conduct, and if necessary put him on notice that his unauthorised importation constituted an infringement of copyright. After obtaining from Lee a catalogue of the titles Alricarben had for sale, and being informed by him that it was obtaining the DVDs from Japan, Slater was given a demonstration of the DVD players at Lee's dental surgery on 14 April 1997. All subsequent sales and contacts regarding the DVD players on which evidence was led took place in a small room in the surgery. After the demonstration Slater told Lee he worked for AFVSO and had come to warn Lee formally about his parallel importation of film and video products. Lee was then given a standard letter from AFVSO outlining the relevant sections of the Copyright Act that relate to the parallel importation of products that have copyright material on or about them. The letter reads in part:

[8]

6 Lee, on the other hand, claims Slater said he didn't know whether copyright law applied to hardware, but he would find out, and that the manufacturers of the DVD players might contact Lee. Lee said Slater merely handed him the letter which he read, that Slater never used the phrase "parallel importation", that he was never informed that he needed a licence, that he was not told to contact anyone, and that no discussion took place regarding the importation and sale of DVDs and DVD players. Having acknowledged that he received the letter, Lee's account of the conversation that followed involves an exchange so anodyne as to defy credulity. One is left with the impression that nothing at all was said by either party, and for that reason I prefer Slater's account of what took place. On a more general level, Lee's evidence as a whole was unsatisfactory. He had a poor recollection of conversations and events. His records were poorly kept, making it difficult to reconstruct Alricarben's imports and sales. 7 In July 1997 Lee attempted to obtain a number of Pioneer DVD players from Japan. The person with whom he had been dealing at Ramsons in Osaka referred him to Tat Shing Hong ("TSH"), a distributor in Hong Kong. Following Lee's conversation with someone named "Ricky" of TSH, Alricarben ordered three Pioneer DVD players. At least three subsequent purchases of at least eight DVD players took place in August and December 1997. The players were received in Australia and were either sold to or swapped with various individuals between July and October. 8 The applicants first became aware of Alricarben's importation of DVD players some time around October 1997. On the applicants behalf, Stuart Baker ("Baker"), a sales representative in the employ of Pioneer Australia, contacted Lee on 14 October to discuss the purchase of a Pioneer DVL9 player. Lee said he would sell the player for $1,850.00 with a surcharge if Baker wished to pay by credit card. Lee also told Baker the machine was a 110 volt player, and the sale included a transformer that would allow the machine to work at 240 volts. Baker visited Lee's business premises and bought the DVL9 player on 24 October. Lee said the player had a twelve month warranty, and told Baker to bring it back if there were any problems with it, and it would be repaired. Baker then left with the player. At no stage did Baker tell Lee that what Lee was doing was contrary to the Copyright Act, nor did Baker tell Lee to desist. 9 After receiving the DVL9 player and the transformer, Pioneer Australia lodged a complaint with the safety and standards branch of the New South Wales Department of Fair Trading alleging that the transformer did not comply with Australian electrical standards. It requested an investigation. Robert Bryant ("Bryant"), a Department investigator, visited Lee's business premises on 21 November 1997. Bryant told Lee that Pioneer Australia had informed the Department that Lee had been importing DVD players that were not suitable for direct use in Australia due to their voltage, and selling the players with a transformer that was dangerous. Lee told Bryant he had no more transformers in stock, and that he had only sold three or four of the transformers. In cross-examination Lee said that by this he meant he had no more of the transformers for sale. In fact he had two transformers at home. Bryant told Lee that by selling the transformers he was in breach of the Electricity Safety Act 1945 (NSW) and asked him to recall the products. In his Complaint Investigation Report, Bryant recorded the breach as "minor", but this, he said, was an evaluation of the necessity for legal action and how widespread the problem was rather than a comment on the relative safety of the transformer.

[18]

Safety of the transformers 14 The transformers that were the subject of Pioneer Australia's complaint to the Department of Fair Trading were blue autotransformers manufactured by the Nissyo Corporation. They have three parts: an input cord with a two‑pin plug at each end, the transformer itself which is a blue box with metal casing and coils of wiring inside the case, and an output cord with a two‑pin plug at one end, and a "figure-eight" plug, colloquially called a "female" plug, at the other. One plug of the input cord goes into the electricity socket, the other into the transformer. The two‑pin plug of the output cord goes into the transformer, and the figure eight plug into the player. 15 There was some controversy as to whether all these players were sold with the same transformers. Lee claimed he sold only three Pioneer players with Nissyo transformers, the other players being sold with Paltronic transformers. This claim was not made until after the close of the applicants' case, and no hint of it appears in the affidavit evidence filed. There is no evidence as to whom the Paltronic transformers were sold. In cross‑examination Lee accepted that machines other than Pioneer DVD players were sold with Nissyo transformers. Three Nissyo transformers were in evidence: one sold to Buu and another to Fiedler. Lee said he had destroyed a transformer he sold to a Dr Appan, and it is common ground that the transformer that accompanied the player sold to Baker was lost after it was sent to Pioneer Australia. I note at this point that seven months elapsed between the sales to Fiedler and Baker, and yet the Nissyo transformers were still being used. It seems therefore that Lee sold at least one transformer more than he claimed, and there was no evidence to corroborate his claim that he sold Pioneer players with other than Nissyo transformers. Although the Paltronic transformers were sold to Alricarben by TSH, as recorded in the invoices, they were never produced to the court and no reports were commissioned on their safety. I am thus unable to make any findings on their relative safety. 16 The Nissyo transformers had a number of unsatisfactory features. The most serious was that once the input cord (with the two pins) was plugged into the electrical socket and the power turned on, the other end of the cord was live, with exposed pins. Anyone touching the live pins would receive a potentially lethal electrical shock. This touching could occur before the cord was plugged in to the transformer, or if the cord came loose from the transformer. Lee said he sought to overcome this problem by gluing the plug from the first cord into the transformer socket and then covering the area with sticky tape or electrical tape to discourage people from removing the plug. However, one of the transformers in evidence had no such glue or tape. Further, there was no evidence about the nature or appropriateness of the particular glue used. According to the expert evidence, the glue might degrade over time and cease to hold the socket in place, or it might inhibit conduction and cause overheating. Given that not all plugs were glued into the socket, and that there is no information about the type of glue and its long term effect when used in this manner, I do not consider it an adequate method of dealing with the problem caused by having two plugs on the input cord. 17 The Nissyo transformers had other problems. The two‑pin plugs were made for American sockets which accommodate parallel pins, rather than pins that are in opposite diagonal directions, suitable for Australian sockets. One transformer in evidence had a pin connection placed over the original plug to make the pins sit firmly. In the other two the pins had been manually twisted into a diagonal position to fit Australian sockets. This was not done with any amount of precision, leaving open the possibility of damage to the socket in which the plug was placed. If the twisting was done poorly, the plug would not sit flush with the socket, and might leave enough of the pins exposed to constitute a risk of electrocution. Children playing with the socket might touch the pins, or a thin metal object such as a tape measure might come into contact with them. The plugs themselves are smaller than the standard size plug. When plugged into the wall socket, there is a smaller barrier to prevent contact with the pins, making contact relatively easier than for a standard size plug. 18 Another electrical hazard lay in the casing of the transformer. The transformer was not double insulated, which is a mandatory requirement for all metal-enclosed transformers in Australia and in most other countries. Double insulation involves the separation of the transformer casing from the live parts (which should themselves be insulated) inside the casing in order to prevent the casing becoming alive with electrical current. If there is no double insulation of the casing, the casing must be connected to an earthing connector, which leads back to the earthing system of the electrical supply, and prevents electrocution if the case is live. The Nissyo transformers were not earthed. 19 There was also no distinction between the sockets on the transformer into which the input and output cords were to be plugged. The Nissyo transformers were autotransformers. The input power is connected to a wire, along the length of which the potential difference to earth (the voltage) is 240 volts. The wire runs around a series of coils and back to the socket. At a certain point along the winding it is "tapped" ‑ an input and output wire are physically attached to the single winding. The distance between the input and output tapping along the winding determines the voltage of the current that flows from the attached wire. If the autotransformer is being used to reduce voltage, the distance between positive and negative flows is shorter than for the mains supply, so the potential difference is reduced. This is how the autotransformer would be used in powering a Japanese DVD player, which is designed for 110 volts. However, an autotransformer may also be used to increase voltage by making the distance between the positive and negative in the output greater than the distance between positive and negative for the mains. Thus, if the input cord on the Nissyo autotransformer is placed in the output plug ‑ and as the plugs are identical this might happen ‑ the potential difference of the output current is increased by the same ratio by which it would have been decreased. This would produce an output of 576 volts that would damage the DVD unit and give rise to the risk of electrical shock. Another problem is that, because the two pin plugs are symmetrical, they could easily be plugged into the transformer with the plug rotated 180 degrees. This would result in the transformer having no effect, and the DVD player would be directly connected to the 240 volt mains supply. 20 The Nissyo transformer is to be contrasted with the type of compliant domestic transformer used in Australia: a double wound transformer. In these transformers the input circuit is not in direct electrical contact with the output circuit. Both circuits are attached to coiled wires, which are placed next to one another. The mains power induces an electric current to circulate in the primary coil, which in turn induces the current in the secondary coil attached to the output circuit. 21 The Nissyo transformers breached Electrical Safety regulations in the following respects:

[58]

30 I do not regard these factors as pointing towards the grant of a licence. Mr Barelli, Pioneer Australia's managing director, said that while Pioneer knew that players purchased in Asia were being sold in Australia, once an Asian sale had taken place, there was little Pioneer could do to control the way in which the purchaser thereafter dealt with the player. Nevertheless, when Pioneer Australia discovered that imported products were being sold in Australia, it contacted Pioneer, which reprimanded the Asian seller and pointed out that a sale to someone other than a bona fide consumer was a breach of the seller's contract with Pioneer. In those circumstances, Pioneer's knowledge of the sales into Australia cannot found the implication of a licence to import and sell. 31 Mr Barelli also pointed out that once the goods had been sold in Asia, there was little Pioneer could do to prevent the purchaser modifying them so they could be used in the Australian region. The means of effecting the modification could be discovered on the Internet, and anyone could work out how to make the modification. Pioneer did not approve of purchasers making the modifications, and had taken action against such purchasers in Europe. In the circumstances, Pioneer's awareness of the making of modifications does not point to the grant of a licence to Alricarben to import and sell the players. 32 Pioneer's awareness that a transformer was required to operate imported players in Australia does not point to a licence. The Baker purchase was a trap purchase, preparing the ground for action against Alricarben and Lee. It does not suggest a licence. Given that action was taken against both Lee and Alricarben in late December 1997, the two months' delay in doing so does not point to a licence. See Time‑Life per McHugh J at 123. In the circumstances in which Lee/Alricarben traded, it is unrealistic to draw a distinction between them, so as to suggest that while there was a belated objection to Lee's conduct, there was no objection to Alricarben's. 33 In my view Pioneer has established that it did not licence Alricarben to import and sell DVD players. There was no express licence. Pioneer's evidence was that it did not authorise Alricarben's importation and sales activity. That evidence was not challenged in cross‑examination. No such licence should be implied. It is not to be implied from the matters dealt with in pars 29 to 32. Further, Pioneer was proposing to release DVD players onto the Australian market through Pioneer Australia in March/April 1998. The players would be specific to the Australian market, would be 240 volt models and would comply with Australian safety regulations. There was every reason why Pioneer would not want modified DVD players on the market prior to then, and absolutely no reason why it would licence someone like Alricarben to import and sell the inferior products. Pioneer has satisfied the first limb of each of ss 37 and 38.

[62]

35 Lee understood that he could not make copies of the materials claimed to be protected by Pioneer's copyright. He knew he could not photocopy the instruction manual, and that the "C" in the circle on the instruction book was a reference to copyright. He was aware of copyright warnings at the commencement of videos. He understood that "piracy" meant making an unauthorised copy of a video. He was aware that he could not copy or reproduce the packaging used by a manufacturer of DVD players, and that the brand markings on DVD units could not be copied. Further, after Slater's warning in April 1997 Lee had notice of a claim of right by other owners in relation to the parallel importing of video discs and cassettes. Slater advised Lee that he should check the importation of DVD hardware with hardware manufacturers. Lee described Slater's letter as "very unpleasant", but did not, as he said he would, contact his solicitors and have them get in touch with Slater. There is no evidence that Lee contacted hardware manufacturers. The letter disclosed that copyright existed to prevent exactly the type of importation that Alricarben was engaging in with respect to DVD players. A reasonable person would have asked what the prohibition of the importation of video discs and cassettes meant for the importation of players. The effect of the conversation that followed was to put Lee on notice that the importation and sale of DVD players would be an infringement of copyright. 36 In those circumstances I find that Alricarben, through Lee, knew that if it were to make Pioneer DVD players in Australia it would infringe Pioneer's copyright. Lee's evidence was that he didn't know that what he was doing was a breach of copyright. I accept that that was so before Slater's warning in April 1997. But I am satisfied that as a result of the warning Lee knew that there was at least a risk that what he was doing was a breach of copyright. But even accepting his evidence, it does not satisfy the test posed by ss 37 and 38, which is not whether the importer knew that what it was doing was a breach of copyright, but whether it knew that the manufacture by it of the product in Australia would be a breach. If I am wrong about actual knowledge (in the sense described in par 34), there is a clear case of constructive knowledge. Constructive knowledge ("ought reasonably to have known") goes beyond notice of facts. It focuses on the reasonableness of the conduct of the alleged infringer, and is concerned with whether, acting reasonably, the infringer ought to have made further inquiries that would have led to it acquiring the relevant knowledge. See Raben Footwear Pty Ltd v Polygram Records Inc (1997) 37 IPR 417 at 426 per Tamberlin J. In view of what he had been told by Slater, Lee should have made inquiries as to the lawfulness of his importation and sale of DVD players. He should have contacted his solicitors, as he said he would, and he should have contacted the hardware manufacturers. It was unreasonable for him to remain passive as he did. Had he made these inquiries he would have discovered the true position.

[63]

MISLEADING AND DECEPTIVE CONDUCT 37 The applicants seek declarations that Alricarben's conduct constitutes a contravention of ss 52 and 53 of the Act, injunctions restraining the making of representations alleged to constitute contraventions of those sections and damages. It was submitted for Alricarben that even if it had engaged in misleading and deceptive conduct, the applicants' trade practices claims had to fail for want of proof of reliance and damage. But this confuses proof of breach of ss 52 and 53 with the relief that may be granted in respect of the breach. There is no need to show reliance or loss in order to obtain a declaration that someone has engaged in contravening conduct or an injunction restraining that conduct. See Puxu Pty Ltd v Parkdale Custom Built Furniture Pty Ltd (1979) ATPR 40‑135 at 18,474 and World Series Cricket Pty Ltd v Parish (1977) ATPR 40,040 at 17,426. It is certainly necessary to prove that loss was suffered in consequence of contravening conduct in order to recover damages under s 82. That follows from the words of the section ‑ "A person who suffers loss or damage by conduct of another person that was done in contravention of" a provision of Part V. See Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 525. But loss and damage are not in issue at this stage, questions of liability and quantum having been separated. What is in issue before me is whether the declarations and injunctions I have mentioned should be made or granted. 38 The applicants case under s 52 of the Trade Practices Act was that Alricarben represented that the DVD players and the transformers supplied with them were suitable for use and/or approved for use by the applicants in Australia. In my view by advertising, offering for sale and selling the players, Alricarben represented that they were suitable and safe for use in Australia. That was misleading and deceptive, or likely to mislead or deceive. For the reasons given in pars 16 to 21, the DVD players as sold were not suitable and safe for use in Australia. Counsel for the respondents made no attempt to answer this part of the applicants' case, though at one stage he said he would return to it later.

[65]

PASSING OFF 40 Pioneer Australia's case on passing‑off was that Alricarben's conduct conveyed a misrepresentation that it was associated with Pioneer Australia or was sponsored by it, and that this was potentially damaging to its goodwill. Alricarben was selling Pioneer goods which were not approved or fit for sale. This had the potential to cause a loss of sales when Pioneer players were released in Australia in March/April 1998. These products were to be manufactured specifically to comply with Australian standards. 41 Pioneer Australia has a substantial reputation by reference to the Pioneer trade marks and name in connection with the sale, service and repair of Pioneer brand goods in Australia. It has imported for sale, and promoted and sold throughout Australia, very substantial quantities of Pioneer brand goods to a value of approximately $67 million to $83 million per year over the years 1995 to 1999. Its expenditure on advertising between 1994 and 1999 was at least $3 million per annum. Since 1973 it has been responsible for the provision of authorised service and repair for all Pioneer brand goods in Australia, and for the appointment of authorised service and repair agents throughout Australia. 42 In my view Alricarben's conduct conveyed a representation that it was associated with Pioneer Australia. The representation was false, and was reasonably likely to cause confusion in the trade and in the minds of the public. That is to say, there was a reasonable likelihood that consumers would be confused or deceived. See A G Spalding & Bros v A W Gamage Ltd (1915) 84 LJ Ch 449 at 452 and Baume & Co Ltd v A H Moore Ltd [1958] Ch 907 at 915, 917‑919. 43 The respondents submitted that the tort required proof of deceit, which was neither pleaded nor proved. An applicant does not have to prove deceit in order to establish passing off. An intention to deceive has not been a necessary ingredient of the tort since Millington v Fox (1838) 3 My & Cr 338; 40 ER 956 decided that equity concerned itself with the protection of a plaintiff's property rights. The modern basis of the tort is injury to an applicant's reputation, business or goodwill by the respondent's conduct irrespective of any intention to deceive. See Warnink v J Townend & Sons (Hull) Ltd [1979] AC 731 and Conagra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302 at 344. 44 The misrepresentation was likely to damage Pioneer Australia's goodwill because the goods that were being sold by Alricarben were not suitable or safe for sale in Australia. By the time of the planned release of Pioneer DVD players and products in March/April 1998, it was likely that such products would have acquired a bad name because of Alricarben's sale of the imported Pioneer players. Passing off does not require proof of actual damage; the probability of damage is sufficient: H P Bulmer Ltd and Showerings Ltd v J Bollinger SA [1978] RPC 79.

Parties

Applicant/Plaintiff:

Pioneer Electronics Australia Pty Ltd

Respondent/Defendant:

Lee

Legislation Cited (3)

Trade Practices Act 1974(Cth)ss 52

Electricity Safety Act 1945(NSW)

Cases Cited (21)

Pioneer Electronics Australia Pty Ltd v Lee [2000] FCA 1926

COPYRIGHT - Importation and sale of "Pioneer" Digital Video Disk (DVD) players ‑ Players programmed to receive DVDs from Japan region and set to operate at 100 volts ‑ DVDs, packaging and instruction manual incorporating "Pioneer" trade marks ‑ Whether importation constituted breach of ss 37 and 38 of Copyright Act 1968 (Cth) ‑ DVD players not yet released in Australia by copyright owner ‑ Whether ss 37 and 38 deal only with parallel importation ‑ Whether licence to import ‑ Whether importer had actual or constructive notice that importation and sale of players would constitute infringement of copyright if players had been manufactured by it in Australia ‑ Appropriate test to determine personal liability of director for act of corporation. TRADE PRACTICES ‑ 100 volt Pioneer DVD players sold with transformer made by another company to enable operation at 240 volts ‑ Whether player and transformer safe for use ‑ Whether a representation that DVD and transformer together were suitable and safe for use ‑ Whether representation that applicant had sponsorship or approval of Pioneer ‑ Whether proof of damage necessary to obtain relief ‑ Passing off ‑ Appropriate test to determine personal liability of director for act of corporation. Copyright Act 1968 ss 36, 37, 103, 119 Trade Practices Act 1974 (Cth) ss 52 and 53(d) R A & A Bailey & Co v Boccaccio Pty Ltd (1986) 6 IPR 279 discussed Roland Corporation v Lorenzo & Sons Pty Ltd (1991) 105 ALR 623 cited Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR 88 applied Lorenzo & Sons Pty Ltd v Roland Corporation (1992) 23 IPR 376 cited Interstate Parcel Express Co Pty Ltd v Time‑Life International (Nederlands) BV (1977) 138 CLR 534 cited RCA Corporation v Custom Cleared Sales Pty Ltd (1978) 19 ALR 123 applied Star Micronics Pty Ltd v Five Star Computers Pty Ltd (1990) 18 IPR 225 cited Apple Computer Inc v Computer Edge Pty Ltd (1984) 53 ALR 225 cited Raben Footwear Pty Ltd v Polygram Records Inc (1997) 37 IPR 417 applied Puxu Pty Ltd v Parkdale Custom Built Furniture Pty Ltd (1979) ATPR 40‑135 applied World Series Cricket Pty Ltd v Parish (1977) ATPR 40,040 applied Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 cited A G Spalding & Bros v A W Gamage Ltd (1915) 84 LJ Ch 449 cited Baume & Co Ltd v A H Moore Ltd [1958] Ch 907 cited Millington v Fox (1838) 3 My & Cr 338 cited Warnink v J Townend & Sons (Hull) Ltd [1979] AC 731 cited Conagra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302 cited H P Bulmer Ltd and Showerings Ltd v J Bollinger SA [1978] RPC 79 cited Performing Right Society Ltd v Ciryl Theatrical Syndicate Ltd [1924] 1 KB 1 followed Kalamazoo (Aust) Pty Ltd v Compact Business Systems Pty Ltd (1985) 84 FLR 101 followed Martin Engineering Co v Nicaro Holdings Pty Ltd (1991) 100 ALR 358 followed Microsoft Corp v Auschina Polaris Pty Ltd (1996) 142 ALR 111 followed Lott v JWB & Friends Pty Ltd [2000] SASC 3 followed Henley Arch Pty Ltd v Clarendon Homes (Aust) Pty Ltd (1998) 41 IPR 443 followed Mentmore Manufacturing Co Ltd v National Merchandising Manufacturing Co Inc (1978) 89 DLR (3d) 195 considered White Horse Distillers Ltd v Gregson Associates Ltd [1984] RPC 61 cited King v Milpurrurru (1996) 136 ALR 327 cited Trevor Ivory Ltd v Anderson [1992] 2 NZLR 517 considered Said v Butt [1920] 3 KB 497 cited O'Brien v Dawson (1942) 66 CLR 18 cited Rutherford v Poole [1953] VLR 130 cited Root Quality Pty Ltd v Root Control Technologies Pty Ltd [2000] FCA 980 cited PIONEER ELECTRONICS AUSTRALIA PTY LIMITED and PIONEER KABUSHIKI KAISHA v BENJAMIN LEE and ALRICARBEN PTY LIMITED VG 723 OF 1997 SUNDBERG J 22 DECEMBER 2000 MELBOURNE

[2000] SASC 3

(1986) 6 IPR 279

(1991) 105 ALR 623

(1990) 171 CLR 88

(1992) 23 IPR 376

(1977) 138 CLR 534

(1978) 19 ALR 123

(1990) 18 IPR 225

(1984) 53 ALR 225

(1997) 37 IPR 417

(1992) 175 CLR 514

(1992) 33 FCR 302

(1985) 84 FLR 101

(1991) 100 ALR 358

(1996) 142 ALR 111

(1998) 41 IPR 443

(1996) 136 ALR 327

(1942) 66 CLR 18

[2000] FCA 980