Read the full judgment text of CACV 000305/2005 on BabelCite. This Court of Appeal judgment was delivered on 29 March 2006 before Rogers VP, Le Pichon JA.
Civil law – interlocutory injunction – delay – irreparable damage – cross-undertaking as to damages – costs – whether an injunction that was framed as a final injunction but treated as interlocutory should stand where the applicant delayed for over a year in bringing the application – product series distribution agreement – oral agreement followed by written agreements dividing four toy series – whether circular letters and emails warning customers of copyright infringement were justified – Marble Series and Miscellaneous Products allocated to 2nd plaintiff; Screw Series and Space Series allocated to 2nd defendant – whether copyright owner entitled to warn potential secondary infringers – first issue: whether delay disentitled the applicant – the traditional promptness requirement is commonly six weeks of unexplained delay or three months with explanation; American Cyanamid principles require demonstration of irreparable damage as paramount – holding: yes; the delay of about a year, combined with the applicant's own similar conduct and silence on the delay point, meant irreparable damage was not established – second issue: whether the 20 December 2004 email was justified – holding: yes; the email concerned only the Marble Series, in which the 1st plaintiff held rights, and putting a potential secondary infringer on notice of copyright is a legitimate step – third issue: whether the absence of a cross-undertaking as to damages was fatal – holding: a cross-undertaking is owed to the court, not the other party, and is ordinarily required; only very special circumstances justify its omission – fourth issue: whether the order should have been drawn as a final injunction – holding: no; the framing was a substantive defect – fifth issue: costs – holding: following American Cyanamid, the normal order is costs in the cause on both sides; immediate costs in favour of the successful party require very special circumstances such as improper conduct or a wholly baseless application – outcome: appeal allowed, order below set aside, injunction discharged, costs of appeal to be heard.
Legal issues: Effect of delay and absence of irreparable damage on interlocutory injunction application · Propriety of the email concerning the Marble Series and secondary infringement · Requirement of cross-undertaking as to damages on grant of an interlocutory injunction · Framing of the injunction as a final rather than interlocutory injunction · Proper costs order following refusal of interlocutory injunction
Outcome: Appeal allowed; the order below set aside and the injunction discharged.
Cited by 1 case · Cites 1 case