Simpsons Solicitors

Poles apart (and some $400K poorer)

September 23rd 2014

The Federal Circuit Court of Australia has handed down its decision in a case revolving around pole dancing equipment and accessories.

X-Poles was concerned that “Skyrunner” was selling inferior quality poles for such dances – poles that not only bore copies of X-Pole’s trade marks, but that were potentially dangerous to the pole-dancing public and (presumably) their audiences.

X-Poles was also concerned that the poles sold by Skyrunner were accompanied by unauthorised copies of a range of X-Poles’ copyright material – not only its logo, but also the artwork in the manual that accompanied the pole, various photographs, an instructional video and a photograph of Ms Jamilla Deville. (Ms Deville – based in Sydney – is not only a Miss Pole Dance Australia, but has also twice-running been the IPDFA Instructor of the Year.)

The Court awarded X-Poles damages on the basis of:

  • lost profits on 160 poles sold by Skyrunner;
  • loss of X-Poles’ reputation at both retail and wholesale levels; and
  • Skyrunner’s flagrant disregard for X-Poles’ rights (Skyrunner’s behaviour displayed a “deliberate, deceitful and calculated disregard” of those rights, and continued even after it was given warnings).

All up, just under $95,000 was awarded for lost profits and reputation, with an additional $300,000 being awarded by way of “aggravated” damages. The case is therefore a good reminder of the general principal that there is no necessary correlation between compensatory damages and aggravated damages (for “flagrancy”). Rather, aggravated damages are available to mark a court’s “recognition of the opprobium attached to the defendant’s conduct“. Skyrunner was also ordered to pay X-Poles’ costs.

The case – Vertical Leisure Limited v Skyrunner Pty Ltd [2014] FCCA 2033 (5 September 2014) – is available at:

http://www.austlii.edu.au/au/cases/cth/FCCA/2014/2033.html

If you need advice on copyright or trade mark infringement, or on copies of your products, contact copyright and trade mark lawyer Adam Simpson or Ian McDonald (Special Counsel) at Simpsons Solicitors.