Rosemin Pty Ltd v Gasp Jeans Chadstone Pty Ltd

DESIGN REGISTRATIONS 6 Rosemin is the registered owner of the following Australian Design Registrations, all of which have been the subject of examination: (a) Design Registration no. 312739, registered from 13 October 2006 - for a dress design known as the Bo-Peep Dress; (b) Design Registration no. 312740, registered from 13 October 2006 - for a dress design known as the Belt Me In Dress; (c) Design Registration no. 312363, registered from 13 September 2006 - for a dress design known as the Cross My Heart Dress; (d) Design Registration no. 313660, registered from 16 November 2006 - for a dress design known as the Secret Dress; (e) Design Registration no. 313016, registered from 29 August 2006 - for a dress design known as Pink Lips Dress; and (f) Design Registration no. 312362, registered from 13 September 2006 - for a dress design known as the Moon Dress. (collectively referred to as the 'Rosemin Designs') 7 Dresses sold by Gasp ('the Gasp Dresses') are claimed to infringe the Rosemin Designs under s 71 of the Designs Act 2003 (Cth) ('the Act'). 8 Gasp has admitted that: (a) the Gasp Dresses embody designs that are identical to or substantially similar in overall impression to the Rosemin Designs; and (b) it sold or otherwise disposed of, or offered to sell or otherwise dispose of, the Gasp Dresses. 9 It is therefore not in issue that Gasp will have infringed the Rosemin Designs, under s 71(1)(a) of the Act, if the Rosemin Designs Registrations have been validly issued.

VALIDITY 10 The sole issue in this proceeding is whether on the grounds appearing in the cross-claim, each of the Rosemin Designs Registrations was validly issued. The Rosemin Design Registrations are taken to be valid until it is found that the designs were not registrable and that they should be revoked. Gasp who seeks revocation bears the onus of proving the necessary elements, and establishing that the Rosemin Designs were not registrable for the reason that they were not new or original or because of prior publication or use. 11 The validity issue was pleaded solely under s 93(3)(a) of the Act, namely that the designs were not registrable designs. No claim for revocation has been made under s 93(3)(b) (that the owner was not an entitled person), s 93(3)(c) (that other persons were entitled persons), or s 93(3)(d) (the registration was obtained by fraud, false suggestion or misrepresentation). Gasp seeks orders pursuant to s 93 of the Act that the Rosemin Designs Registrations be revoked.

EVIDENCE 12 The table attached as "Annexure A" summarises the evidence relating to the design, priority dates, and sales of Rosemin and Gasp Dresses, essentially agreed by the parties. 13 To support its claim of prior publication of the Gasp Dresses, Gasp relied on the following evidence: (a) Witnesses: (i) Eddie Yilmaz (ii) Shan Lian Qiu (iii) Sandra Alameddine (iv) Lucinda Keily (b) Documentary Evidence: (i) Gasp Purchase Orders to Gang Sheng (ii) Shipment Receipts (iii) Tax invoices from DHL Express to Gasp (iv) Parcel Express Quantity Lists to Gasp from Gang Sheng (v) Sales Contracts from Gang Sheng to Gasp (vi) Sales Reports from Gasp 14 Further, to support the allegation of prior publication of the Secret Dress Design, additional evidence was given as to a photo shoot that was alleged to have occurred on 18 September 2006, before the priority date 16 November 2006. In this respect, Gasp relied upon the following evidence: (a) Witnesses: (i) Eddie Yilmaz (ii) Matthew Chidgey (iii) Frank Collosuomo (iv) Lucinda Keily (v) Shan Lian Qiu (b) Documentary Evidence: (i) Photographs (ii) Running Sheet of Photo Shoot (iii) Gasp Promotional Catalogue (iv) C Frank Hair Studio Invoice (v) Invoice from Wayne Quilliam 15 Rosemin called two witnesses:- (a) Ms Se Min Kim, a director of Rosemin, and Rosemin's head designer; (b) Mr Sam Hyun Im, a director of Rosemin. 16 I now turn to consider the evidence in more detail, first in relation to the alleged prior publication of the Gasp Dresses generally, and then specifically as to the photo shoot. I will deal with the evidence of Ms Lucinda Keily in the context of the photo shoot, for while some of her evidence related to the sale of the Gasp Dresses, most of her evidence related to the photo shoot. I will deal with the evidence of Mrs Qiu in the context of the alleged prior publication of the Gasp Dresses generally, although her evidence is also relevant to the photo shoot.

Mr Eddie Yilmaz 17 Mr Eddie Yilmaz gave evidence in relation to his duties as Operations Manager for Gasp and in respect of the Gasp business documents. Mr Yilmaz commenced his employment with Gasp in 2001 as a retail consultant and moved into his role as Operations Manager in about 2004-2005. Mr Yilmaz reported to Gasp's Director, Mrs Shan Lian Qiu. 18 Mr Yilmaz repeatedly emphasized the delineation of responsibilities between himself and Mrs Shan Lian Qiu - Mrs Qiu having primary responsibility for the selection of dresses and creative aspects of Gasp's business (including the creative direction of photo shoots and catalogues), with his own role being operational, staff management and administrative. Mr Yilmaz stated that Mrs Qiu, as director, handled all the accounts with his assistance. 19 Mr Yilmaz stated that Gasp traded under different brand names, including Emmanuella, Aviva and Gabriella. Those lines were predominantly dresses. Gasp commenced wholesaling in about 2001-2002 and only wholesaled interstate. 20 Mr Yilmaz stated that the Gasp brand was targeted at females aged 16 to 25. He described Gasp's signature style as 'promiscuous' and 'playful' with vibrant colours. The dresses were designed for functions, clubs and parties and were therefore not seasonal items. Mr Yilmaz stated that Gasp stores would carry between 60-70 styles of dresses at any given time and 200 styles annually. Since 2000, Gasp has stocked only its own brands and dresses retailed for prices ranging from $100 to $700 per item. 21 Mr Yilmaz stated that Gasp did not source its designs from other Australian designers, but obtained them from Gang Sheng. However, Mr Yilmaz stated that he did not have any direct contact with Gang Sheng and that Mrs Qiu handled this side of Gasp's business. Mr Yilmaz stated that the style numbers of Gasp Dresses were initiated by Gasp. The styles were selected by Mrs Qiu and purchase orders were typed up by Mr Yilmaz. Mr Yilmaz stated that the goods ordered from Gang Sheng would arrive variously by DHL Express, courier and airfreight. He stated that he had no knowledge as to how Gang Sheng sourced any of the dresses, and whether such dresses might be made in Australia. Mr Yilmaz (and Mrs Qui) did accept that if the label of the dresses indicated 'Made in Australia' then this would indicate that the dress would be made in Australia. 22 On this issue, Mr Yilmaz was cross examined by Counsel for Rosemin: MR RIVETTE: Now, I put it to you again that all of those garments were made in Australia? As I said - yes, we have got Made in Australia, we have got Made in China, I think we have got Made in Europe. We have got all sorts of country of origins. Have you? But in terms of So you ? In terms HIS HONOUR: Let the witness explain what he wants to explain? But as far as - yes, Gang Sheng and who they delegate manufacturing to, or what, I'm not the person to answer that question. I don't have any sound knowledge. MR RIVETTE: No. Well, let me put it to you that you are aware that Gang Sheng didn't manufacture those dresses; that those dresses were manufactured in Australia? WITNESS: Well, as I said, I'm not - I haven't got a sound understanding to answer your question. MR RIVETTE: So you're saying no, that you don't know that they were made in Australia? WITNESS: Well, it - if they say Made in Australia they certainly would be made in Australia. Yes. So if the label says Made in Australia your company would have made them in Australia. You wouldn't be misleading the consumers? We're not manufacturers. No. MR RIVETTE: So they're made in Australia. All right. So I put it to you that all of the Gang Sheng documentation that you have tendered is just not accurate, that they're all documents that have been recreated for the purposes of these proceedings? WITNESS: No. 23 Mr Yilmaz stated that Gasp would usually have only one of each style in each size in any store. He stated that approach avoided saturating the market with the same dresses and was designed to ensure that Gasp did not have excess stock. However, he gave evidence that once Gasp was convinced that a dress was a winner, they would swing that dress into a much bigger production. He also gave evidence that if the dress was included in the wholesale catalogue, it would be a dress that they would need to fill orders and fill orders quickly. This also was the same situation with the internet sales through the Gasp website. The Secret Dress of Gasp was included in both the wholesale catalogue and the website. 24 Mr Yilmaz stated that copying in the fashion industry was rife and Gasp had been required to deal with this issue on a regular basis. Gasp's approach to the problem was based upon the fact that it had a fast stock turnover - so as soon as it became apparent that another store had a similar dress, the dress was reduced for a quick sale. Mr Yilmaz stated that Gasp had a policy of clearing any items that are found to be similar to other dresses on the market. This would generally be done through a clearance outlet. 25 Mr Yilmaz stated that he became aware that Rosemin was carrying similar dresses to the Gasp Dresses in around 2006 and implemented Gasp's normal policy of discounting the Gasp Dresses to clear the stock. 26 I accept Mr Yilmaz's evidence, and regard him as a witness who told the truth, and accept that his role at Gasp was as indicated by him in his evidence. Significantly, I accept that the designing and organising of the manufacture of the Gasp Dresses was primarily the role of Mrs Qiu. This was confirmed by the evidence of Mrs Qiu herself. Mr Yilmaz was not able to answer a number of questions put to him by Counsel for Rosemin, not because Mr Yilmaz was evasive or non-responsive, but because of his role within Gasp. Therefore, I do not regard his failure to answer questions put to him as indicating an unwillingness to tell the truth. 27 I also specifically reject any suggestion that Mr Yilmaz was involved in any conduct involving forging or the creation of documents to support Gasp's position in this proceeding.

Mrs Shan Lian Qiu 28 Mrs Qiu stated that she was a trained fashion designer, having studied fashion design in college in China. Mrs Qiu stated that she was employed by Gasp in around 2003 as a fashion consultant, later took over as sole designer, and then became a director of Gasp. 29 Mrs Qiu stated that she was responsible for sourcing all Gasp clothing from Gang Sheng. She stated that she commenced sourcing clothes from Gang Sheng for Gasp in 2004, initially buying only Gang Sheng designs and, from around late 2006-2007, providing Gang Sheng with designs for manufacture. Mrs Qiu handled all liaison with a Mrs Qiu Min Zhang at Gang Sheng as Mrs Qiu was the only person within Gasp able to speak Chinese. 30 Mrs Qiu stated that Gang Sheng made designs for the European and American markets. Designs were provided to her by internet in order to select dresses for Gasp stores. Mrs Qiu stated that she would receive hundreds of designs each week and would pick on average around 20 per week. Samples were then provided to her by DHL Express and in some cases she would make adjustments to the styles of the dresses. Mrs Qiu stated that Gang Sheng dresses had a Chinese style number and that she assigned a new Gasp design number to each selected style. 31 Mrs Qiu stated that she had no knowledge as to how or where the dresses were manufactured by Gang Sheng. However, Mrs Qiu confirmed that each of the Gasp Dresses were supplied to Gasp by Gang Sheng. 32 On the issue of where the Gasp Dresses were in fact manufactured, Mrs Qiu was cross-examined by Counsel for Rosemin: HIS HONOUR: So no dresses are manufactured, to your knowledge, in Australia? WITNESS: Manufactured in Australia but ordered from Gang Sheng, so that's their factory, that's a friend of Gang Sheng to do dresses here. Chinese people does do dresses here, which HIS HONOUR: In Australia? WITNESS: Yes. HIS HONOUR: I see? WITNESS: My garment made in Australia, my dresses, you know. To get my jeans as I dealing with it, and the dresses factory Chinese people does them here, is Gang Sheng dealing with them, I don't - I don't dealing with them. They don't even tell me where it is. MR RIVETTE: Because you've just said about the labels. You're aware that the labels on all of the dresses, the Gasp dresses, have a label Made In Australia, don't you? You're aware of that? WITNESS: My dresses - if the dresses says Made In Australia, made in Australia. MR RIVETTE: Yes? WITNESS: If the dress says Made In China, in China. Some of them made in Ukraine. You know, my dresses are from everywhere. … MR RIVETTE: Yes. But you don't know whether you saw customs documentation relating to these six styles of Gasp dresses; is that what you're saying? WITNESS: I don't recall. MR RIVETTE: That's fine. But can you say to his Honour that these dresses, these six Gasp dresses definitely came to you from Gang Sheng from China? WITNESS: It's not from China, it's made in here. I say that once, I say that before, I say it again, it's made in here. But I ordered from Gang Sheng, you know, when he my agent, like, sort of. MR RIVETTE: Okay. So your evidence is that these dresses, the six Gasp styles of dresses? WITNESS: Yes. MR RIVETTE: came into your warehouse - do you have a warehouse? WITNESS: Yes. MR RIVETTE: They came directly into your warehouse from an Australian factory, didn't they? WITNESS: Of course. MR RIVETTE: Yes? WITNESS: They will be, they were not sent to China and sent back to me because they already in Australia. MR RIVETTE: They were already in Australia? WITNESS: They are - yes, they Australian made. MR RIVETTE: And they came to you from the factory in Australia that made them, didn't they? WITNESS: Yes. MR RIVETTE: Now WITNESS: But that's not my style, that's Gang Sheng style, you know that, right? I saw the samples from Gang Sheng they send to me and I order through them and they deliver to me from Australian factory. MR RIVETTE: From Australia? WITNESS: Yes. MR RIVETTE: And that is why there are no customs documents relating to these styles? WITNESS: You're right. 33 There was an initial uncertainty as to whether the Gasp Dresses were actually manufactured in Australia. The Sales Contracts for the supply of the Gasp Dresses with Gang Sheng indicated that the loading port was Shanghai, China. 34 The Sales Contacts were obviously standard form contracts, and I accept that the main concern of Mrs Qiu was to source the garments from Gang Sheng. Mrs Qiu did not really care where the dresses were actually made, nor did she observe the reference to the loading port being Shanghai in the standard form document. 35 I find that the Gasp dresses were actually made in Australia (as labelled). I observe that no customs papers are said to exist for the importation of the Gasp Dresses. It was suggested by Counsel for Rosemin that it was not believable that a factory in China would send its patterns to Australia to make only a few dresses for Gasp. I am not convinced this is so. As Mrs Qiu explained (which I accept as reasonable), she requested Gang Sheng to undertake that task, and in view of her relationship with Gang Sheng and her own persuasive powers, Gang Sheng organised the making of the dresses. Nothing in the timing or other aspect of the transaction between Gang Sheng and Gasp seems to me to show that the transaction as relied upon by Gasp did not in fact take place. 36 As to some of the documentation relied upon in this proceeding, Mrs Qiu stated that Mr Yilmaz requested that she make enquiries of Gang Sheng as to whether it could supply design and pattern-making documentation for the Gasp Dresses. She stated that the request was made of her one week before the trial in this proceeding. Mrs Qiu stated that the documents which are Exhibit R22 were provided to her by Mrs Zhang in response to that request. 37 I accept the evidence of Mrs Qui. It is consistent with the documentation provided, and in my view consistent with the evidence of Mr Yilmaz. I accept that Mrs Qiu was not involved in any conduct forging or creating documentation in an effort to support Gasp's case in this proceeding. Mrs Qiu gave evidence in a forthright manner, and was not evasive. I do not accept the submission of Counsel for Rosemin that the demeanour of Mrs Qiu should result in my rejecting her evidence, or that there was a 'concerted course of conduct of deceit' employed by Gasp. 38 I indicate at this point that there is no evidence before the Court of any representative of Gang Sheng. Gasp did seek to lead video evidence of Mrs Xiu Min Zhang from Gang Sheng. I allowed evidence to be introduced by video on the application of Gasp, which commenced but was interrupted (through no fault of any of the parties) before Counsel for Rosemin could have the opportunity to cross-examine Mrs Zhang. In the end, Gasp decided not to proceed to call Mrs Zhang or rely upon her evidence already given, and Rosemin itself decided not to call Mrs Zhang. It was eventually agreed by the parties that the evidence already given by Mrs Zhang should be disregarded by me. This I have done. However, any documentation otherwise admissible in evidence indicating the transaction taking place between Gang Sheng and Gasp I have taken into account, after considering the submissions of Rosemin as to its veracity and weight. However, I have otherwise proceeded on the basis that there is no evidence from a representative of Gang Sheng. In view of my acceptance of the evidence called by Gasp (including the veracity of the documentation), this lack of evidence has no impact upon the result in this proceeding. Nevertheless, I have noted that Gasp sought to call and did call Mrs Zhang from Gang Sheng to lead evidence about the Gasp Purchase Orders and Sales Contracts, and subjected Mrs Zhang to cross-examination. At the very least, this indicates Gasp was prepared to put before the Court evidence of a third party attesting to the supply dates to verify Gasp's own position in this proceeding.

Sandra Alameddine 39 Ms Sandra Alameddine gave evidence led by Gasp in an attempt to prove that the Gasp Pink Lips dress was in the Gasp store on a certain date before the priority of the Rosemin Pink Lips Dress. Her evidence was: (a) the Gasp Pink Lips dress was in the Gasp store between the time that she commenced her employment with Gasp and definitely before 25 September 2006; (b) She started her employment with Gasp on 18 September 2006 (which was also evidenced by the employment record), and so saw the dress sometime between 18 September 2006 and 25 September 2006; (c) The Gasp Pink Lips Dress was not in store to her knowledge on 29 August 2006. 40 As the priority date for the Rosemin Pink Lips dress is 29 August 2006, Ms Alameddine's evidence establishes that the Gasp Pink Lips dress was in Gasp store approximately four weeks after the Rosemin Pink Lips dress was introduced into the Rosemin store. I do not consider that Ms Alameddine's evidence establishes that the Gasp Pink Lips Dress was available before the priority date. I place no reliance on this evidence to support the claims of Gasp. 41 I now turn to some of the documentary evidence relied upon by Gasp, and evidence in respect of those documents.

The Gasp Purchase Orders to Gang Sheng 42 Mrs Qiu stated that after she selected the dresses to be ordered from Gang Sheng, the purchase order would normally be typed up by Mr Yilmaz or Mr Chidgey. A hard copy of the purchase order would then be filed by Mrs Qiu. 43 Mr Yilmaz stated that the date of the purchase order was usually the date of the preparation of the order. He said that the purchase order form would remain on Gasp's computer as a pro forma and only the information about style, distribution and price was altered. 44 Mr Yilmaz stated that the usual break up for an initial order by Gasp would be 3 x 3 x 3 of each size. The purpose of this was to test the market with small quantities. He said that a hard copy of the purchase order was always printed out and the purchase order was normally faxed to the supplier, Gang Sheng. 45 It was contended by Counsel for Rosemin that Mr Yilmaz's evidence in relation to these purchase orders demonstrated that these documents were prepared after the event and for the purposes of this proceeding. In particular reliance was placed up on the following evidence of Mr Yilmaz: (a) The purchase orders were printed off a computer and were a pro-forma document; (b) Most of the information on the form was manually put in, including the style number and date; (c) Mr Yilmaz could manually create the purchase order with a date 1/1/2000 and could print it out; (d) Mr Yilmaz said on two occasions that Mrs Qiu prepared the purchase orders, he assisted from time to time, and that he had only prepared them "a few times"; (e) The purchase orders were faxed to the supplier; (f) Mr Yilmaz then gave the purchase orders to Mrs Qiu who kept the hard copy. 46 In my view, nothing in the above evidence indicates anything other than Mr Yilmaz had the opportunity to prepare the documents for the purposes of this proceeding and fabricate the date and style. It does not demonstrate that Mr Yilmaz (or Mrs Qiu or any other person within Gasp) took advantage of that opportunity. As I have said, I accept the evidence of Mr Yilmaz (and that of Mrs Qiu) that no such conduct occurred. 47 It was further argued by Counsel for Rosemin that in contradiction to Mr Yilmaz's evidence that he only prepared the purchase orders "a few times", the four purchase orders (with dates from 4 June 2006 to 27 June 2006) all bare his signature (or 'doodle'). It was contended that they all appear to be signed with the same pen, although Mr Yilmaz's evidence was that he does not use a specific pen. I do not consider that either of these observations indicate that the documents are not what they purport to be, evidencing purchase orders at a specific date. Mr Yilmaz may not have a specific pen, but this is not to say the same style or type of pen was not available for use and was used as the occasion arose. His reference to only preparing purchase orders a "few times" does not seem to me to be inconsistent with his preparation of the purchase orders he admitted signing. 48 The main contention of Rosemin is that the authenticity of the purchase orders should not be accepted and that Mr Yilmaz's denial that he produced these documents after the event for the purposes of this proceeding should be rejected. It was submitted his explanation was unsatisfactory and contradictory. 49 It was argued that the Court should infer that the failure of Gasp to produce electronic versions of the purchase orders, given that no satisfactory reason was given, so that the properties and date could be revealed, was because this uncalled evidence would not have assisted Gasp's case. 50 I reject each of these contentions. I do not find Mr Yilmaz's denials to be unsatisfactory, or his evidence to be contradictory. He constantly informed the Court of his role in Gasp, the process of production and documentation, and the fact that electronic versions were no longer available due to an upgrade to the computer system at Gasp. Whilst such upgrade occurred after the commencement of this proceeding, I do not find that such occurred with the intention to destroy evidence that would otherwise assist Rosemin. The upgrade occurred in the normal course of business, which I would expect in a retail business of the type operated by Gasp. Putting all the evidence together (including that of the photo shoot to which I will come), the overwhelming probability is that the purchase orders reflect the transactions indicated therein, as explained by the witnesses.

The DHL Express Tax Invoices and Shipment Receipts 51 Mrs Qiu stated that after she selected the designs, Mr Yilmaz would generally deal with all the practical aspects of ordering the dresses from Gang Sheng. She stated that the dresses would usually arrive around two weeks to a month after placement of the order. 52 Mr Yilmaz stated that the DHL Express shipment receipts were created using DHL Express software which was downloaded onto a Gasp computer where it sits on the hard drive. He stated that the DHL Express shipment receipts were printed out with the airway bills and would usually accompany samples back to Gang Sheng. Mr Yilmaz said that Gasp did not store DHL Express shipping receipts in hard copy. Mr Yilmaz printed out the shipment receipts put in evidence after a request from Gasp's solicitors shortly after the commencement of this proceeding. 53 Mr Yilmaz stated that the DHL Express tax invoices were received from DHL Express after the date of the shipments. They would not normally be printed out in hard copy as Gasp would obtain a summary report. 54 It was contended by Counsel for Rosemin that it was important to compare the shipping receipts with the DHL Express tax invoices. Rosemin pointed to the evidence of Mr Yilmaz that: (a) The DHL Express tax invoices were for shipments that corresponded with the DHL Express purchase orders which Mr Yilmaz created; (b) The tax invoices were sent from DHL Express electronically, and Gasp did not keep a paper version of them; (c) Mr Yilmaz printed the DHL Express tax invoices from his computer after the proceedings had been commenced, and upon being asked by the solicitor for Gasp for relevant documents; (d) There were no customs documents in existence that related to these shipments; (e) The DHL Express tax invoices made no reference to the Gasp style numbers; (f) The only reference to any Gasp style number was in the shipping receipt, which Mr Yilmaz himself created. 55 It was contended by Rosemin that the DHL Express tax invoices added nothing to what was purported to be contained in the shipping receipts, which Mr Yilmaz himself created. It was said that the absence of the style numbers in the invoices added weight to the contention that the shipments to which they related were not shipments that contained the Gasp Dresses. 56 Again, it was contended that the Court should infer that the failure of Gasp to produce electronic versions of these documents, given that no satisfactory reason was given, so that the properties and date could be revealed, was because this uncalled evidence would not have assisted Gasp's case. 57 For the same reasons I have mentioned previously in relation to the purchase orders, I reject these contentions. Whilst the scenario painted by Rosemin may lead to the opportunity to fabricate the documentation, I am not persuaded on the balance of probabilities such occurred. The tax invoices, whilst it is true did not have the relevant style numbers, otherwise authenticate the transactions which the other evidence supports.

Gang Sheng Parcel Express Quantity Lists 58 Mr Yilmaz stated that the Gang Sheng Parcel Express Quantity Lists were usually provided to Gasp by Gang Sheng by fax and provided advance information on shipments of dresses to Gasp. Each document bore the fax imprint of "From SGSC, Fax No 5041 6265" and the relevant date. The Lists referred to the style numbers allocated by Gasp on sending the purchase order to Gang Sheng. I have accepted these documents into evidence, and there is no basis to assert they do not reflect the underlying transactions indicated on their face. These documents do not stand alone. Apart from the evidence of Mr Yilmaz, the Lists are consistent with the procedure for ordering outlined by Mrs Qiu.

Gang Sheng Sales Contracts 59 Mrs Qiu stated that she received and filed the Gang Sheng Sales Contracts. Mr Yilmaz stated that the Gang Sheng Sales Contracts were received after shipment of the goods by Gang Sheng. The Sales Contracts also refer to the style numbers allocated by Gasp on sending the purchase order to Gang Sheng. Again, I have accepted these documents into evidence. I have already referred to the contracts previously, and see no basis to conclude that they do not reflect the underlying transactions of sales by Gang Sheng on the dates they bear, even if the loading port was not Shanghai.

Gasp Sales Reports 60 Ms Keily identified reports led by Gasp (Exhibit R9) as Gasp Sales Reports used in 2006 and gave evidence in relation to their day-to-day use. She stated that sales staff inputted information such as style barcode into the store registers for each sale. The Sales Reports were printed at the end of the day and were faxed to Gasp's head office in Richmond to enable stock to be replenished the following day. Ms Keily stated that Gasp now used the "counter intelligence" software system. 61 Under cross-examination Ms Keily was asked a number of questions about the capability of the MYOB system used by Gasp in its stores at the time. Ms Keily indicated that the price came up automatically from the barcode once entered. It was not established whether the price could then be altered manually by the sales attendant - for example, in the event of a price reduction or staff sale. 62 Mr Yilmaz gave evidence that he obtained the Sales Report tendered into evidence in response to a request from Gasp's solicitors after the commencement of the proceeding by using a facility whereby the individual store computers could be accessed remotely. Mr Yilmaz gave evidence as to the manner in which the Sales Reports could be prepared and recalled. Staff were able to access all the functions of MYOB at any time without a "pass code" and that the system could be manually altered. 63 It was contended by Counsel for Rosemin that the most glaring example of documents being created after the event, in order to support Gasp's contention of prior publication, was to be found in the Sales Reports. Gasp referred to the evidence of Mr Yilmaz as follows: (a) The Sales Reports were created manually, and the underlying data could be changed even at store level; (b) The sale price was entered from the system, and Gasp would have the stock at full price when it first came into store and dresses would not be offered for discount immediately; (c) The MYOB system created sequential "Docket" numbers that ran in 100 increments: ie from 299 to 300, 301 and so on, and no separate docket book was created or kept in store; (d) The Sales Reports put into evidence showed when the first sale of each relevant Gasp dress style was made and from which store. 64 It was then contended that when Mr Yilmaz was taken to irregularities in the Sales Reports, his evidence was unsatisfactory and at times evasive, as was said to be illustrated by the following: (a) When taken to the Sales Report for Melbourne Central with a date 06.09.2006, and shown how the docket number for the SD-01-BL-S dress (Gasp Cross My Heart dress) went out of sequence, from 476 on the previous entry to 301, Mr Yilmaz could not and did not answer directly. (b) When taken to the Sales Report from Chadstone dated 11.08.2006, which purported to show the first sale of the Gasp Pink Lips dress being made at a price of $250 instead of the ticket price of $499, Mr Yilmaz refused to answer directly. (c) Mr Yilmaz was taken to the Sales Report from Gasp Chadstone that had a date range of 11/08/2006 to 11/08/2005. The witness had earlier responded to a question, saying that this was impossible, the system would not allow you to do it, so he thought it was an illegible copy. The document was clearly not illegible. Under cross-examination Mr Yilmaz agreed that if the date range went from 2006 to 2005 the program could not generate a report, but maintained that the report had not been independently created for the purposes of this proceeding. (d) There was the evidence of the faxed date stamp on all of the Sales Reports. Ms Keily gave evidence that the Sales Reports were prepared in store and faxed at the end of each night to head office. Having heard this evidence Mr Yilmaz explained the date stamps (which were all 30 October 2007) referred to when the Brighton Office had received all of the reports, well after this proceeding was commenced. This contradicted his evidence that he had printed the document from the computer to send to Gasp's solicitor. 65 It was further submitted by Counsel for Rosemin that the evidence, and the manner in which it was given, supported the proposition that the Sales Reports were not created by the stores, as was the protocol explained by Ms Keily. They were not original documents, but documents created on the day of, or soon before, the faxed date stamp, but in any event long after the event they purport to capture, and created for the sole purposes of supporting Gasp's case. 66 It was then submitted that this must be the conclusion drawn by the Court, especially when no electronic files have been discovered, as they allegedly no longer exist. The Court should infer that the failure of Gasp to produce electronic versions of these documents, given that no satisfactory reason was given, so that the properties and date could be revealed, was because this uncalled evidence would not have assisted Gasp's case. 67 I accept that there are irregularities in the Sales Reports, as indicated by the submissions of Counsel for Rosemin. However, I do not think it can be concluded that Mr Yilmaz's response to the questions put to him under cross-examination indicated he was evasive or not truthful. Mr Yilmaz was not a computer expert, and was confronted with these irregularities without any notice. The impression I obtained from observing Mr Yilmaz give evidence was that he was honestly trying to deal into the irregularities put to him, but was not technically able to explain them. He did explain, as I have indicated, that the computers were upgraded, which explanation I have accepted as the reason for the failure to produce electronic versions of these documents. No expert evidence was led as to the operation of the computer or the significance of these irregularities. Mr Yilmaz was candid in explaining the providing of the documentation to Gasp's solicitors, and the way in which the Sales Reports were prepared and recalled from the computer. The reduction in price to $250 from $499 may well have occurred. In any event, I would not expect Mr Yilmaz to be able to explain this further than he did. Therefore, I reject the contentions of Counsel for Rosemin that the Sales Reports were fabricated. However, in view of the irregularities, and the failure of Gasp to be in a position to explain them, I do not rely on the Sales Reports as supporting Gasp's case. 68 I now turn to the evidence relating to the photo shoot and production of the Gasp catalogue.

Mr Eddie Yilmaz 69 Mr Yilmaz stated that he did not have any involvement in organizing photo shoots for Gasp and that that task was undertaken by Mrs Qiu and Mr Chidgey. Mr Yilmaz's evidence given during cross-examination in relation to the photo shoot is assessed in that context. He also stated from the outset of his evidence that he had no involvement in the creative side of Gasp's business. 70 Mr Yilmaz confirmed that Gasp did not generally produce catalogues or undertake photo shoots within a set timeframe. He stated that Gasp catalogues were produced on average around four times a year. Mr Yilmaz said that the catalogues might be selected "to portray an image" and would not always be "on a product orientation form". I take this to mean that the products featured in a catalogue might not always be products currently available for sale by Gasp. 71 Mr Yilmaz's answers in this respect were consistent with those given in response to the image of the Gasp Secret Dress in the Gasp Promotional Catalogue. Mr Yilmaz stated that advertising was not always product based. Mr Yilmaz stated that the price range printed over the image in the magazine referred to the range of prices at which the Aviva range retailed, and was not a quote for any particular dress in the catalogue. 72 Mr Yilmaz explained the difference between final Gasp Catalogue as printed and the copy attached to the witness statement was that the latter was a draft showing the proposed layout for the final catalogue. 73 Under cross examination, Mr Yilmaz strongly denied that there was no photo shoot on 18 September 2006 and denied that the invoices from Mr Collosuomo (the hairdresser) and Frank Quilliam (the photographer) were altered or created by Gasp for purpose of this proceeding. 74 I accept the evidence of Mr Yilmaz. Apart from the manner in which he gave his evidence, his explanations appeared logical and consistent with other evidence I have accepted in this proceeding.

Matthew Chidgey 75 Mr Chidgey gave evidence as to his role within Gasp and involvement in the Gasp photo shoot on 18 September 2006. 76 Mr Chidgey stated that he commenced employment with Gasp in 2001 and was employed as Gasp's Creative Director, a role in which he assisted with the organization of photo shoots and PR activities under the supervision of Mrs Qiu. 77 Mr Chidgey stated that Gasp did approximately three to four photo shoots annually. He said that he would normally attend photo shoots when Mrs Qiu was not available. Mr Chidgey stated that Mrs Qiu would usually select the dresses to be included in the photo shoot and Mr Chidgey would gather up those dresses. Mr Chidgey stated that Gasp did not do photo shoots on a seasonal basis. He stated that some shoots were close together depending upon what stock was available. 78 Mr Chidgey confirmed that he was involved in organizing the photo shoot for the Gasp Catalogue and stated that he could recall that the photographer was Wayne Quilliam. He stated that he prepared the run sheet for the photo shoot. When asked to whom the run sheet was distributed he said: MR RIVETTE: And who do you send this document to before the photo shoot takes place? Who receives this document? WITNESS: Well, Mickey has a look at it and it gets approved by her and then just get the dresses to be pulled out from the warehouse. MR RIVETTE: So it is really an internal document? WITNESS: Yes. 79 Mr Chidgey stated that he was at the photo shoot in the morning but left mid-morning when Mrs Qiu arrived. He stated that he was unable to recall whether he was there when the Secret Dress was photographed. 80 Mr Chidgey stated that he was asked by Eddie Yilmaz to find some documentation on the photo shoot in preparation for the hearing of this proceeding and located the run sheet in his files. He no longer has an electronic copy of the document as all Gasp's computers have been replaced. 81 Under cross-examination Mr Chidgey denied that he prepared the run sheet for the purpose of this proceeding: MR RIVETTE: So I put it to you, that the reason that you can't recall - that you're not sure, whether you produced this document, is because you didn't produce the document. I'll put that fairly and squarely to you? WITNESS: No. I did, because it looks like something I would write. MR RIVETTE: Well, not that it looks like something that you would write, but that you can't recall because you didn't prepare this document? WITNESS: No, I did prepare it. MR RIVETTE: You did. So now you recall preparing it, do you? WITNESS: I said "bits and pieces" I recall, but it looks exactly how I do things. So I mean, obviously, it was me. MR RIVETTE: Why, do you work to a format, do you? WITNESS: No, I've just got my own style in how I do things, and this is how I do it - just basic. MR RIVETTE: So a running sheet - do you have a standard format for running sheets that may appear in a precedent document in your computer that you then just fill out? WITNESS: No. MR RIVETTE: No. Okay. So your evidence is that you prepared - that you think you prepared it, because it's got your style; that's right? WITNESS: Yes. MR RIVETTE: But you have no independent recollection of preparing it? WITNESS: I do recall preparing it. 82 I accept Mr Chidgey's evidence. I do not consider Mr Chidgey fabricated the run sheet. As with the other documentation, the capacity to create and modify a document such as the run sheet does not provide a sound basis for the inference that the run sheet was modified or created for the purpose of this proceeding. The preparation of the run sheet is consistent with the other evidence, and would be something I would expect in the normal course of preparing a photo shoot. 83 Counsel for Rosemin contended that Mr Chidgey was an unsatisfactory witness, particularly when giving evidence on the preparation and use of the run sheet. I agree that initially Mr Chidgey said that he had prepared the document himself, whilst under cross-examination he admitted that he had no recollection of preparing the document, and only believed that he did so because it looked like something he would write and was in his style. However, later he changed his evidence by saying that he could now recall preparing the document. However, in context this change was just a careful reflection that Mr Chidgey made after the cross-examiner confronted him with various questions. The impression I obtained was that Mr Chidgey initially thought the run sheet was his document, he reflected it was in his style, and then confirmed that it was his document, his memory effectively being refreshed by the cross-examination. 84 Counsel for Rosemin referred to some examples of Mr Chidgey's contradictory evidence in relation to the use of the run sheet as follows: (a) Mr Chidgey's evidence was the run sheet has an internal document that only he and Mrs Qiu look at. (b) Mr Chidgey said that the run sheet was prepared when Mrs Qiu was not at the shoot or available, and that when she was available she calls people and tells them where they have to meet. (c) Yet Mr Chidgey gave evidence that Mrs Qiu was available for this shoot, with no explanation why the run sheet needed to be prepared. The hairdresser, Mr Collosuomo, gave evidence that he was not provided with a run sheet for the shoot and someone just rang him to say 'We'll meet here', consistent with the situation when Mrs Qiu was available and no run sheet was prepared. (d) Later again in cross-examination Mr Chidgey said that the run sheet was to tell everyone involved in the shoot where they had to be and when. But no evidence was led of any person involved in the shoot receiving the run sheet. 85 It was further submitted by Counsel for Rosemin that Mr Chidgey also gave evidence that was in contradiction with other evidence presented by other witnesses, and that must throw in doubt the veracity of the run sheet and must suggest that this was a document that was created long after this proceeding commenced. 86 I accept that Mr Chidgey admitted that the run sheet includes a reference to a silver Gasp Secret dress, and that such a dress would have a code such as 'SL', whilst the evidence was that no silver dress of that style was ever produced. This may have occurred due to a change in the dresses to be photographed. I also accept that Mr Chidgey had little recollection of whether Gasp would do two shoots within a week of each other. He also said they were not a really big event, which contradicted the evidence of Mrs Qiu who said the shoots were a big event, and costly. However, this is just a matter of impression, depending upon the role and position of Mr Chidgey and Mrs Qiu. It was suggested by Counsel for Rosemin that at this point in his evidence Mr Chidgey looked at someone in the body of the Court before he answered, which I accept appeared to be the case, although I observed no attempted coaching of the witness. 87 In my view, the evidence given by Mr Chidgey in its essential elements is not contradictory. His role was to produce a run sheet. It was an internal document. The hairdresser Mr Collosuomo was not expected to receive one, nor did he. The running sheet would be prepared for Mrs Qiu, she being the director and person in charge. I did not take the evidence to be that a run sheet would not be made if Mrs Qiu were available for the shoot. The run sheet would be brought to the shoot so everyone involved at the shoot would know the programme. This is consistent with the various participants being told to meet at a certain location and at a certain time, and then the run sheet would be used for the shoot. 88 I accept Mr Chidgey's evidence. The run sheet was prepared for the shoot on 18 September 2006, and Mr Chidgey had the run sheet in his files so that it could be produced in Court in this proceeding. The run sheet was not fabricated or created for the purposes of this proceeding.

Frank Collosuomo 89 Mr Collosuomo gave evidence in relation to his work as a hairdresser on the photo shoot. 90 Mr Collosuomo gave evidence that he was a hairdresser who had since around 2006 been engaged on a casual basis by Gasp for photo shoots. Gasp no longer uses Mr Collosuomo for its photo shoots. He stated that he had been engaged in September 2006 to work on a photo shoot for Gasp at the Esplanade in St Kilda. Mr Collosuomo stated that he prepared the hair of the model who appeared at page 17 of the Gasp Catalogue and had prepared the invoice for the work done on the Gasp Catalogue. 91 Mr Collosuomo stated that he had no independent recollection of the date of that photo shoot but by reference to the invoice prepared by him, confirmed that the date of the photo shoot was 18 September 2006. He denied that he had been asked to prepare the invoice for this proceeding to evidence the date of the photo shoot. He stated that he was paid on the day for his work by "Alex" and prepared the invoice shortly after the photo shoot at the request of Gasp. He stated that this was his normal practice in working with Gasp. 92 Mr Collosuomo stated that he saw the printed Gasp Catalogue soon after the photo shoot in Gasp stores on display for customers. When asked whether he had any independent recollection of the time at which he first saw the Gasp Catalogue, Mr Collosuomo stated: It was pretty soon after, because basically I think anyone that does work, once they see their work on a piece of paper - so I was excited to see it, you know, published in a book, because it was my style. 93 Counsel for Rosemin submitted that Mr Collosuomo's evidence appeared to be truthful when dealing with background facts, however, when it came to the all-important date of creation of his invoice, he became evasive and an unsatisfactory witness. 94 Crucially, it was submitted by Counsel for Rosemin, although Mr Collosuomo did not admit that the invoice was prepared for the purposes of this proceeding, Mr Collosuomo gave unsatisfactory and contradictory evidence in relation to the creation of his invoice and therefore his recollection as to the date of the shoot. In particular, Counsel for Rosemin relied on the following: (a) Although admitting that Alex, the owner of Gasp, was at the shoot and paid him cash on the dayof the shoot, for the work he performed at the shoot, Mr Collosuomo still prepared the invoice stating that he was owed an amount of $420.00. He was unable to offer any credible reason why he did so, and refused to admit that the invoice was inaccurate, even in this regard. (b) Further, after admitting that he did not prepare invoices, saying: 'I don't really send invoices out, to tell the truth', he later said in relation to preparing invoices: 'Well, I - I normally do it once I do my work I'll go home, do my receipts or whatever I had to do, and send them off'. However, Mr Collosuomo did not do this with the Gasp invoice, because he admitted to only creating the invoice because he was asked to prepare an invoice for the shoot by someone at Gasp, and that he was requested to write out an invoice by the Gasp people time afterthe shoot. 95 I do not accept the contentions of Counsel for Rosemin. 96 I accept Mr Collosuomo's evidence. He was effectively an independent witness, and had no reason to be part of the fabrication of evidence alleged by Counsel for Rosemin. The provision of an invoice, even after receiving the cash, is understandable as a way of providing documentation as to the transaction itself. I can understand how Mr Collosuomo may have been requested by Gasp to provide this documentation after the shoot to evidence the transaction. The invoice may have been sent by email, which would explain the fact that the exhibited original invoice was not folded, which one would expect if sent by post. Mr Collosuomo gave evidence that he sent invoices by post or email (and if sent by post he would have folded it), and that he kept no records of invoices he sent out and did not sign them. Whilst the invoice itself has no date it was actually prepared, I accept Mr Collosuomo's evidence that the invoice was prepared shortly after the photo shoot at the request of Gasp. Mr Collosuomo's demeanour and his approach to answer questions remained constant. I do not consider he was evasive or non-responsive when discussing the invoice, as was contended by Counsel for Rosemin. 97 Whilst he candidly accepted he had no independent recollection, he had a good basis for his evidence that the photo's shoot was on 18 September 2006.

Lucinda Keily 98 Ms Keily was a sales assistant and has worked for Gasp since 2005. She stated that she was asked by Mr Yilmaz to be a model for a photo shoot for Gasp. 99 Although Ms Keily had no independent recollection of the exact date of the photo shoot, she stated repeatedly that she could recall independently that it was in September 2006 because she had left school and moved out of home at around the same time. Ms Keily stated that she had prepared a statutory declaration (dated 15 March 2008) stating that she had participated in the photo shoot on 18 September 2006 at the request of Eddie Yilmaz, who had reminded her of the exact date. 100 Ms Keily stated that the photo shoot commenced in Brighton and then moved on to location in St Kilda. She confirmed that she modelled - the Gasp Secret Dress- in that photo shoot. Ms Keily stated that she recalled seeing the printed catalogue not long after the photo shoot. She stated that the catalogues came into the Gasp stores and were available to the public. 101 I accept that Ms Keily's certainty with which she expressed the photo shoot date as 18 September 2006 in her statutory declaration was only because Mr Yilmaz had provided her with that date. She admitted that the statement was not sworn from any independent recollection she had. However, I regard Ms Keily as a witness who was attempting to recall as best she could the sequence of events. On the balance of probabilities, on the basis of her evidence, I would regard her recollection as to the photo shoot to be accurate, and the date of the photo shoot to be 18 September 2006. 102 As to Ms Keily's evidence as to when the Gasp Secret Dress was in the store, (perhaps one or two weeks after the shoot), and when the Catalogue was in the store, (within a month after the shoot), this was less certain, although they gave an approximate time, which I accept.

Other Evidence Relevant to the Date of the Photo Shoot

Exhibits A27 and A28 103 Exhibits A27 and A28 contain photographs of models wearing Gasp clothing. Images L053 and L055 show a model wearing what appears to be the Gasp Secret Dress. The images occur in the context of a series of images that are consistent with the images in the Gasp Catalogue. 104 Counsel for Rosemin drew attention to the date of 14 September 2006 listed on one of the images and invited the Court to infer that it was unlikely that Gasp would have undertaken a second photo shoot on 18 September 2006. However, I accept the evidence that Gasp did not sell its clothing on a seasonal basis and that there was no regular pattern for conducting of photo shoots by Gasp.

Invoices of Mr Quilliam 105 Further, the occurrence of two photo shoots is consistent with the invoice from Wayne Quilliam dated 18 September 2009 and which required payment for "Photographic Services for two photo shoots x $2,000". This could have been a reference to the two shoots in September. 106 Mr Quilliam was not called by Gasp. Mr Quilliam's invoice was admissible as a business record of Gasp. I draw no adverse inference from Gasp's failure to call Mr Quilliam to give evidence. I would not regard Mr Quilliam as being in the camp of Gasp, and Rosemin could have called him to give evidence. In fact, at one stage Rosemin was contemplating issuing a subpoena directed to Mr Quilliam to bring documents to the Court, when Rosemin became aware that Mr Quilliam was not going to be called by Gasp because he was apparently unavailable. Rosemin made a forensic choice not to proceed to call Mr Quilliam or seek the production of documents from him.

Conclusion on Evidence Relied Upon by Gasp 107 The totality of the evidence indicates to me that the Gasp Dresses were sold or offered for sale prior to each of the relevant priority dates. Counsel for Rosemin effectively made an attack upon all the documentation supporting Gasp's claim, and in effect alleged that Gasp and a number of other witnesses or potential witnesses fabricated the evidence. I have rejected such a claim by looking at the documentation and the other evidence, after considering the submissions of Rosemin. The photo shoot evidence reinforces the conclusion that the claim of fabrication in relation to the Gasp Secret Dress was without foundation. 108 I have considered in the context of each document relied upon by Gasp whether the contentions made by Counsel for Rosemin should lead me to conclude that the documentation is unreliable, so as not to satisfy the burden of proof upon Gasp. I have been mindful that there must be clear evidence of prior use upon which I can rely and unsupported recollections of witnesses need be treated with care. However, other than the Sales Reports, I have concluded that I can safely rely upon the other documentation relied upon by Gasp to support its case on the cross-claim seeking revocation. I have considered the evidence of the witnesses, considering it carefully in the light of the probabilities otherwise shown to exist.

ROSEMIN'S EVIDENCE 109 Evidence was led by Rosemin as to the alleged creation of the Rosemin Designs. Rosemin does not need to demonstrate that it created the Rosemin Designs. Gasp has always maintained that Rosemin copied its designs. In light of the above findings as to prior use, the creation of the Rosemin Designs is a matter that requires no further investigation. 110 It may be that Ms Kim honestly considered she 'created' the Rosemin Designs, because of some inspiration or her own creativity. It may be that she obtained that inspiration from the Gasp Dresses on display. The fact remains, on the evidence, the Gasp Dresses were sold or offered for sale before the priority date. 111 However, I should indicate that I am not satisfied that Rosemin did create the Rosemin Designs for the following reasons: · Ms Kim has never studied design or pattern making and only commenced designing clothes for commercial sale in 2005; · Ms Kim's designs only commenced being sold through Rosemin stores in early 2006; · there is almost no documentary evidence demonstrating the actual creation of the designs by Ms Kim or evidence of the making of the numerous samples alleged to be an inherent part of Rosemin's design process; · Notwithstanding knowledge of Gasp's allegation that the Rosemin dresses were copied from Gasp Dresses, Rosemin led no evidence whatsoever in relation to the creation process from those individuals who worked closely with Ms Kim - including the pattern maker, Ms Kim's assistant at the time, or Moonrise Fashion; · Although Ms Kim described in the most general terms the creative ideas for the Rosemin Dresses, Ms Kim was unable to provide any specificity in relation to the actual construction of the dresses and stated that it was her pattern maker who constructed the dresses. 112 However, as I have said, I do not need to further investigate the creation of the designs. 113 On the above basis, the application should be dismissed, Rosemin being entitled to none of the relief it seeks. Orders pursuant to s 93 of the Act revoking the relevant registrations should be made in the cross-claim.

OTHER MATTERS 114 Various correspondence was relied upon by both parties relating to demands made upon the other, and the making of applications for registrations. 115 In my view, none of this correspondence is of any weight in reaching a conclusion as to the sole issue in this proceeding. 116 Undoubtedly both parties undertook (through their solicitors) to register designs or trade marks to obtain some commercial (or forensic) advantage. 117 Other than making that observation, I did not regard any of the correspondence as impacting upon the result I have reached in this proceeding. 118 Of course, if Rosemin was successful, then the actions of both parties may have been relevant to relief. 119 The evidence that was led by Rosemin of alleged prior copying of other Rosemin garments by Gasp and so the so called confrontation with Alex and his wife (Mrs Qiu) in March 2006 and the subsequent email, did not impart upon the strength of evidence I have accepted in support of the cross-claim.

RELIEF 120 Whilst unnecessary to do so, I make the following observations with regard to Rosemin's claim to damages. 121 The claim for general damages is under two heads: (a) Loss of profit on sales that would have been made but for the sales of the Gasp Dresses; (b) Damage to reputation. 122 In relation to damage to reputation, it was submitted that based on the evidence of the nature of the Rosemin's business and it's reputation, that damage to reputation is the natural and direct consequence of the exposure in the market for sale of copies of the Rosemin Designs. 123 Rosemin also sought an award of additional damages pursuant to s 75(3) of the Act.

Rosemin Claim for Lost Sales 124 In my view, there is no evidence as to how sales of the Gasp Dresses detrimentally impacted on the sales of Rosemin dresses. 125 The only evidence available establishes that Rosemin sold 81% of the total manufactured Rosemin dresses. 126 There was no evidence of further attempts to manufacture the above dresses, or of any drop in sales of the Rosemin dresses once the Gasp Dresses had been manufactured and offered for sale. 127 On the evidence, the Court would not award damages to Rosemin for loss of sales even if there was an infringement.

Rosemin Claim for Lost Reputation 128 Rosemin sought to attribute the entire downturn in its business leading to the closure of their Chapel Street store in 2009 to Gasp's alleged infringement of the Rosemin Designs. In my view, this was an exaggerated claim. 129 Further, there is no independent evidence of the existence of any reputation that would substantiate the existence of a reputation for a design label that had only commenced being retailed commercially in January 2006. 130 Again, on the evidence, the Court would not award damages to Rosemin for lost reputation even if there was an infringement.

Additional Damages 131 I can say nothing further about any award of additional damages in this proceeding, as no infringement of any nature has been established.

CONCLUSION 132 By reason of the foregoing, Rosemin's claim should be dismissed and the cross-claim allowed. 133 The parties can submit orders reflecting that outcome, and any agreed orders as to costs. Any costs order should reflect the fact that Gasp should pay the costs of and in connection with the application for video evidence and in respect of an additional half day of the trial. If the parties cannot agree upon an appropriate order as to costs then they should each file and serve submissions on costs within 14 days. 134 For the above reasons, I will order that the parties file and serve minutes of orders and any submissions as to costs (if necessary) within 14 days.

I certify that the preceding one hundred and thirty-four (134) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

ANNEXURE A SUMMARY OF EVIDENCE ON REGISTRATION AND SALES OF ROSEMIN AND GASP DRESSES Dress Style Reg. Design No Moonrise Invoice for sample Moonrise Invoices for manufactured dresses Priority date Examined Gasp purchase order Date of Packing Express Quantity List First Gasp sale from MYOB PLU Purchased by Rosemin Design Moon Dress SDO2-BY 312362 Sample alleged to have been made, but no invoice 5/9/06 - 30 dresses 13/9/06 12/2/07 12/7/06 14/8/06 21/8/06 15/11/06 Design 1/9/08 - 20 dresses (SHI-25) (46 sold Ex A7) Bo-Peep Dress Design ANA31-BL 312739 9/8/06 and 21/8/06 15/9/06 - 18 dresses 13/10/06 12/2/07 12/7/06 14/8/06 21/8/06 15/11/06 19/9/06 - 18 dresses (SHI-26) (31 sold Ex A7) Belt-me in Dress Design SD03-BFA 312740 Sample alleged to have been made, but no invoice 19/9/06- 31 dresses (SHI-27) (25 sold Ex A7) 13/10/06 12/2/07 20/7/06 23/8/06 4/9/06 15/11/06 Cross my heart Dress Design SDO1-BL 312363 Sample alleged to have been made, but no invoice 5/9/06 -17 dresses 13/10/06 12/2/07 20/7/06 23/8/06 6/9/06 15/11/06 8/9/06 - 19 dresses 15/9/06 - 31 dresses (SHI-28) (47 sold Ex A7) Dress Style Reg. Design No Moonrise Invoice for sample Moonrise Invoices for manufactured dresses Priority date Examined Gasp purchase order Date of Packing Express Quantity List First Gasp sale from MYOB PLU Purchased by Rosemin Design Secret Dress SDO4-BK 313660 20/9/06 2/11/06 - 16 dresses 16/11/06 10/8/07 26/7/06 1/9/06 13/9/06 14/12/06 Design (SHI-12) 3/11/06 - 10 dresses 8/11/06 - 21 dresses (SHI 29) (33 sold Ex A7) Pink Lips Dress Design SDO6-BK 313016 Sample alleged to have been made, but no invoice 25/8/06 - 16 dresses 29/8/06 10/8/07 4/7/06 5/8/06 11/8/06 14/12/06 1/9/06 - 12 dresses (26 sold Ex A7)