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Mallesons sets precedent

Mallesons sets precedent

A valuable precedent, whereby Anton Piller and Mareva orders were simultaneously obtained at the outset of proceedings was set in a recent case in the Federal Court. Mallesons Stephen Jaques…

A valuable precedent, whereby Anton Piller and Mareva orders were simultaneously obtained at the outset of proceedings was set in a recent case in the Federal Court.

Mallesons Stephen Jaques represented Microsoft on the copyright case it brought against desktop and notebook distributor PC Club Australia and its directors and business manager, for knowingly importing counterfeit Certificates of Authenticity and affixing them to computers with unlicensed copies of Microsoft Windows. Conti J found for Microsoft on every point and awarded more than $1 million in damages.

Lead partner for Mallesons on the matter, Maurice Gonsalves, believed Anton Piller and Mareva orders had never been issued together before.

In this case, there was sufficient cause to believe the defendants might start disposing of assets before judgement. “I suspect this will be used as a precedence for cases where there is reason to believe defendants might dispose of evidence and assets.”

The defence raised a number of “somewhat creative” legal arguments, Gonsalves said, some of which had not been seen in a copyright case before. One defence was that Microsoft had not established copyright of Windows. The prosectution “relied on presumptions in the Copyright Act” to facilitate proof of copyright.

Another argument was based on section 12 of the Conveyancing Act, which required notice to be given on assignment of any debt to the debtor — if this does not occur, claims cannot be made against the debtor. The defence argued that section 12 applied to assignment of copyright and Microsoft could not claim against PC Club because the company had not been notified of an assignment of exclusive license to copyright within the Microsoft group of companies.

“No one had ever raised the Conveyancing Act in a copyright case before,” Gonsalves said. “We persuaded the judge that section 12 did not apply and no notice had to be given.”

The argument that the defendant thought the certificates were genuine was also flawed because the certificates were supplied on their own, not with the program. The directors of the company were also found liable.

Maxwell IP represented PC Club Australia.

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