Section 5(2) of the 1956 Act provided that ‘Copyright in a . . work is infringed by any person who . . imports an article . . if to his knowledge the making of that article constituted an infringement of that copyright, or would have constituted such an infringement if the article had been made in the place into which it is so imported’. The defendants imported shirts from Hong Kong. They had a design similar to one they had previously been shown by the plaintiffs. The plaintiffs sent a letter before action on 21 February 1976. It was common ground that, in the light of Van Dusen v Kritz, knowledge could be imputed to the defendants by 5 March 1975, 14 days after receipt of the letter. One of the issues was whether the defendants had had the requisite knowledge prior to receipt of the letter.
Held: The claim failed. Whitford J cited Van Dusen v Kritz, and adopted the approach of Harvey J in Albert v Hoffnung and Co Ltd (1921) 22 SR (NSW) 75 at 81 that ”Knowledge’ means . . notice of facts such as would suggest to a reasonable man that a breach of copyright law was being committed’. On that basis the defendants had not had the requisite knowledge prior to receipt of the letter.
Judges:
Whitford J
Citations:
[1978] FSR 451
Statutes:
Jurisdiction:
England and Wales
Citing:
Cited – Van Dusen v Kritz 1936
Section 2(2) of the 1911 Act, which provided that ‘Copyright in a work shall also be deemed to be infringed by any person who . . (c) by way of trade exhibits in public . . any work which to his knowledge infringes copyright.’ The plaintiff owned . .
Cited by:
See Also – Infabrics Ltd v Jaytex Ltd 1985
Where a party fails to preserve documents after the commencement of proceedings, the defaulting party risks ‘adverse inferences’ being drawn for such ‘spoliation’. Because the defendant had not preserved documents affecting the quantum of damage, . .
Cited – Twentieth Century Fox Film Corp and Others v British Telecommunications Plc ChD 28-Jul-2011
The claimant rights holders sought an order to require the defendant broadband internet provider to deny access to its users to websites which were said to facilitate the distribution of infringing copies of their films. An earlier judgment had . .
Lists of cited by and citing cases may be incomplete.
Intellectual Property
Updated: 23 November 2022; Ref: scu.442534