In brief

• The Respondents had been involved in the manufacture and distribution of counterfeit “UGG AUSTRALIA” boots. Deckers Outdoor Corporation Inc (Deckers) is the owner of the relevant trade mark, copyright and reputational rights in the UGG AUSTRALIA brand.
• Justice Tracey of the Federal Court found that two Respondents, Hepbourne Pty Ltd and Mr Mykhalovskyi, had infringed Deckers’ copyright in a number of copyright works and had engaged in the tort of passing off, misleading and deceptive conduct and false representations in breach of the Trade Practices Act 1974 (Cth) and / or the Fair Trading Act 1999 (Vic).
• Deckers was awarded $3 million in compensatory damages and $3.5 million in additional /
  

  ugg

  exemplary damages against Hepbourne Pty Ltd. Hepbourne’s conduct was also in breach of previously agreed terms of settlement, and Deckers was awarded $150,000 for this breach.

• Deckers was also awarded $40,000 in compensation damages and $50,000 in additional / exemplary damages against Mr Mykhalovskyi.

Deckers Outdoor Corporation Inc v Farley (No 5) [2009] FCA 1298

Deckers Outdoor Corporation Inc (Deckers) is the manufacturer of the UGG AUSTRALIA branded UGG boots.

This proceeding was the final stage in a long-running and complex claim by Deckers against 23 respondents in relation to the manufacture, distribution, sale and marketing of counterfeit UGG boots.

At the date of this proceeding (13 November 2009), Decker’s claims against the other 21 respondents had been resolved.

This proceeding related to Deckers’ claims of copyright infringement, passing off, and misleading and deceptive conduct against Hepbourne Pty Ltd (Hepbourne) and Mr Mykhalovskyi. Deckers’ claims of trade mark infringement against these respondents had been dealt with in previous proceedings.

Deckers’ claims against Hepbourne

Copyright infringement

Deckers claimed that Hepbourne had infringed the copyright in its:

• “Sun Device”;
• “UGG AUSTRALIA Logo”;
• “UGG AUSTRALIA Information Booklet”;
• “UGG AUSTRALIA Care Instruction Card”; and
• photographs in the UGG Australia Information Booklet (collectively, the Copyright Works),

by reproducing, or authorising the reproduction of a substantial part, of the Copyright Works on the counterfeit boots it manufactured, and by distributing, or authorising the distribution, of the counterfeit products which incorporated the reproduced Copyright Works.

• In response, Hepbourne claimed that:
• the Sun Device lacked sufficient substance to constitute a work in which copyright could subsist; and
• Deckers was not able to establish that it was the owner of the copyright in the Information Booklet and Care Instruction Card.

However, both of Hepbourne’s arguments were unsuccessful. Justice Tracey was of the view that the Sun Device “is of sufficient complexity to attract copyright protection” pursuant to section 32 of the Copyright Act 1968 (Cth) (Act).

Justice Tracey also held that the evidence given by Deckers in Deckers Outdoor Corporation Inc v Farley (No 2) [2009] FCA 256 established that the Information Booklet and Care Instruction Card were created by employees of Deckers in the course of their employment, and therefore Deckers became the owner of the copyright in these works pursuant to section 35(6) of the Act.

Further, Justice Tracey was satisfied that Deckers’ copyright had been infringed by Hepbourne’s manufacture and distribution of the counterfeit UGG boots, which reproduced the Copyright Works, or a substantial part thereof. Justice Tracey also held that Hepbourne had infringed Deckers’ copyright by authorising the infringement of the Copyright Works by the individuals who manufactured the counterfeit boots at Hepbourne’s factory.

Passing off and misleading and deceptive conduct

Deckers asserted that Hepbourne’s conduct in manufacturing, distributing and selling the counterfeit UGG boots also amounted to:

• passing off;
• misleading and deceptive conduct in contravention of section 52 of the Trade Practices Act 1974 (Cth) (TPA) and / or section 9 of the Fair Trading Act 1999 (Vic) (FTA); and
• false representations in contravention of sections 53(c) and (d) of the TPA and / or sections 12(e) and 12(f) of the FTA.

In considering these claims, Justice Tracey restated that the three core elements required to establish passing off (or “the classical trinity”) are reputation, misrepresentation and damage.

Deckers claimed it had an exclusive reputation in the words and devices which form parts of its get-up (Get-Up). To establish its reputation in the Get-Up, Deckers adduced evidence of its marketing activities and expenditure, and the substantial Australian and international sales of its products. This evidence satisfied Justice Tracey that Deckers had a well-established reputation in the Get-Up, sufficient to make out the first element of passing off (reputation).

Justice Tracey was also satisfied that the evidence of Hepbourne’s conduct indicated that there had been a deliberate attempt by Hepbourne to persuade purchasers that its products were “genuine UGG Australia” products, by replicating Deckers’ Get-Up. Justice Tracey was of the view that this conduct was likely to mislead consumers in breach of sections 52 and 53 of the TPA (and / or sections 9 and 12 of the FTA), and also constituted the second element of passing off (misrepresentation).

In addition, Justice Tracey held that Hepbourne’s conduct had resulted in damage to Deckers, by way of lost sales and undermining consumer confidence in Deckers’ brand due to the poor quality of the counterfeit products. Therefore the third element of passing off (damage) was successfully made out.

Breach of terms of settlement

Hepbourne’s conduct was also found to be in breach of the terms of settlement, pursuant to which an earlier proceeding (VID 1114/2003) had been settled. Under those terms of settlement, Hepbourne was prohibited from manufacturing or distributing UGG boots labelled as “UGG AUSTRALIA” or containing the “UGG Logo”, the word “UGG” or any of Deckers’ copyright works. As a result of this breach, Hepbourne was required to pay Deckers $150,000.

Damages

Although Deckers was able to establish damage to its reputation and lost sales as the result of Hepbourne’s conduct, Deckers was only able to adduce limited evidence as to the quantum of damage suffered by it.

In assessing the award of compensatory damages to Deckers, Justice Tracey considered the number of boots sold by Hepbourne, the profit made by Hepbourne and the awards of damages made to Deckers in previous decisions. Justice Tracey awarded Deckers $3 million in compensatory damages.

Deckers also submitted that it was entitled to additional damages pursuant to section 115(4) of the Copyright Act. Justice Tracey considered that Hepbourne’s conduct, in total disregard of Decker’s rights and the Court’s previous orders, was deliberate and flagrant and warranted an award of additional damages.

Deckers also submitted that it was entitled to an award of exemplary damages on account of Hepbourne’s passing off. Justice Tracey stated:

“This case must be adjudged as one of the worst of its kind to come before the Court. It is probably too generous to describe it as ‘flagrant’. General deterrence must be a significant consideration.”

Justice Tracey awarded Deckers an additional $3.5 million by way of additional damages but did not make a separate order for exemplary damages.

Cross claim

Hepbourne also cross-claimed for the cancellation of Decker’s trade mark registration 785466 UGG AUSTRALIA & Sun Device Logo. Deckers argued that Hepbourne was precluded from bringing such a cross-claim on the basis that Hepbourne had previously given an undertaking that it would not challenge the validity of the trade mark. Justice Tracey dismissed the cross-claim, holding that Hepbourne was bound by the undertaking.

Deckers’ claims against Mr Mykhalovskyi

Deckers also claimed that the second remaining respondent, Mr Mykhalovskyi, had infringed its copyright, and had engaged in misleading and deceptive conduct and passing off.

Mr Mykhalovskyi was one of the individuals regularly engaged by Hepbourne to manufacture the counterfeit boots at Hepbourne’s factory between 2005 and 2007. Mr Mykhalovskyi was also a director of a number of companies that received proceeds from the sales of the counterfeit boots and sometimes purchased raw materials used to manufacture the counterfeit boots.

However, Justice Tracey was not convinced that Mr Mykhalovskyi’s association with these companies was anything more than the use of his name and details on corporate records. Accordingly, Justice Tracey considered that Mr Mykhalovskyi’s primary contribution was labour in manufacturing the counterfeit boots. Justice Tracey held that Mr Mykhalovskyi had infringed Deckers’ copyright, and had engaged in misleading and deceptive conduct and committed the tort of passing off, and ordered Mr Mykhalovskyi to pay $40,000 in compensatory damages to Deckers.

Deckers also sought an award for additional and / or exemplary damages against Mr Mykhalovskyi. Justice Tracey considered that Mr Mykhalovskyi had also displayed a “flagrant disregard” for Deckers’ rights (including continuing to manufacture the counterfeit boots in breach of the Court’s order) and awarded Deckers additional damages in the amount of $50,000 against Mr Mykhalovskyi. As with Hepbourne, Justice Tracey did not make a separate order for exemplary damages.

WHY do so many of us, especially women, wear clothes that make us look ridiculous and shoes that mutilate our feet? I am one of those people who should always take an adviser when they go shopping. I have made some hideous choices over the years. My greatest fashion crime was a little pale blue, terry towelling, zip-up-the-front ”playsuit”. A sort of shorty-shorts and top all in one. I was 21, and on a bright summer day, out I ventured on my shiny red Honda motorbike wearing the playsuit. I also had on my red and black anarchist’s crash helmet. (A police officer once asked me if I barracked for Essendon. I said I did.)

Anyway, the motorbike flooded and spluttered to a stop. I was bending over to remove the spark plug when a burly, bearded bikie on a Norton pulled over to ”help” me. His assistance wasn’t needed; all I had to do was take out the spark plug and dry it, but he insisted and kept trying to kick-start it, which only made matters worse. I finally persuaded him to bugger off and endured a deluge of wolf whistles as I pushed the bike along Dandenong Road.

My fashion crime, however, was nowhere near as bad as that of a friend whom I’ll call Alice. One day she wore a body stocking which had a hole so one could go to the dunny when needed. Over that she wore a mini-skirt. Alice, her sister Zoe and I were riding in a midnight blue Monaro which conked out, also on Dandenong Road. Alice and I were pushing the car to the side of the road while Zoe steered. There was a pandemonium of toots and whistles as Alice bent forward to push the car. Zoe, red in the face and angry, shouted and cursed at the chortling drivers one and all. Just then Alice declared, ”Oh no! I forgot to put my undies on”. Through the looking glass indeed!

This reminds me of the little black and white evening dress I was so proud of and which took several pays to redeem from lay-by. My father referred to it as a ”gownless evening frock”. It was low-cut on top and high-cut on the bottom and had no back. It was sleeveless, too. I wore it to the Woolworths Christmas party in about 1980 when I was a check-out chick. I had my hair piled up in big curls on top like Elizabeth Taylor. It’s hard to imagine anyone looking less like Elizabeth Taylor than me with my John Lennon spectacles and big bumpy nose. I fell over a step at the RSL and received enormous applause because I was wearing fluorescent green knickers with black lace trim.

This summer, some girls are wearing really pretty maxi frocks and they look great. But others are clutching their mini summer dresses, which are obviously inadequate to the task and are at the mercy of the wind. It’s a simple matter of mathematics – a dress ain’t gonna work if there’s much more girl than there is dress.

And the shoes – argggh! How can anything that uncomfortable look so good? A couple of models have gone head over the proverbial on the catwalk because these things are not designed for walking in. They’re designed for mutilation. From the vantage point of my comfortable middle age, where fluorescents have been replaced by big whites and Kumpfs with orthotics, I can’t imagine how the girls can walk in those six-inch heels. I have friends whose Achilles tendons are wrecked from the stilettos my generation wore but they were much lower than today’s monsters.

Podiatrists warn that these shoes wreck feet, backs, pelvises and hips but the girls still wear them. And just so I don’t ignore the men, we know there is a link between tight jocks and testicular cancer. Testes hang outside the body for a good reason – to keep cool.

Perhaps it’s time to start fining clothing manufacturers who design and sell garments that damage our health. We could make it a crime for anyone to manufacture, import, sell or promote such things as shoes we know are going to keep a lot of orthopedic surgeons busy in a few years.

On reflection, however, I have to admit this isn’t going to work because this approach takes us down the same path as the fanatical states that decide what women, in particular, can wear in public. In Aceh, a new law means women who wear tight trousers in public will be forced to don a government-supplied gown and their trousers will be burned in public. In other countries, women have been caned for wearing jeans.

All we can do is provide accurate information and warnings and hope people will heed them – or we could use taxes.

According to a recently filed lawsuit, Hilton allegedly infringed on a patented design when she created a pump for her shoe line. (Described by a fashionable co-worker as looking like the drag queen version of Russell Crowe’s Roman sandals in “Gladiator.”)

Brooklyn-based Gwyneth Shoes say Hilton and her company Antebi Footwear Group willfully infringed on a patent of theirs called “Shoe Sock Having a Heart Shaped Pad.” After the jump, compare and contrast photos of the two shoes and struggle along with us as we try to understand why this is happening in Seattle.

Here’s Paris’ version:

paris hilton's shoe

And now here’s Gwyneth’s:

gwyneth shoes

See the heart? Great. Now on to the more interesting question: Why Seattle?

Gwyneth is HQ’ed in Brookly, N.Y. And Hilton, like most celebrity creatures, seems to spend most of her time in Los Angeles.

Gwyneth’s suit claims they have jurisdiction in Seattle because Antebi sells its Paris shoes at “national department stores with branches located in Washington, including Macy’s located at 800 Stewart St., Seattle.” But last time I checked, lots of shoes get sold at Macy’s.

I tried to contact Gwyneth’s lawyers but have heard nothing in response. So I turned to Tom Ferguson, a local attorney specializing in intellectual property cases. But he was stumped too.

“(Gwyneth) might be looking for a favorable district, the most strategically advantageous court to file the case in,” says Ferguson. “But Seattle doesn’t have any such reputation for such a thing. Why anyone would come here to shop for a forum is beyond me.”

So there. Not even a guy who knows of these things can explain why Hilton is being sued here.

Oh well, at least this means the slim possibility of a (hopefully absurd) Paris sighting in downtown Seattle. Wonder where she’d stay.

Santa

And, just in case Santa is reading this, top of my Christmas wishlist is a Chanel bag.

Yes, I know I’ve mentioned this before – and I know these bags don’t come cheap – but my argument is that it’s a “forever” purchase. Right, Santa?

I’ve also had my eye on a Marc Jacobs hot-pink sequinned clutch and a Paul & Joe strapless jumpsuit from www.uggshoesonsale.com.

So, now I’ve got my party outfit sorted, I’m looking out for something warm to combat these arctic conditions. I’m hunting down a pair of knee-high sheepskin boots – Made In Australia has some fab crystal-studded ones.

And, talking of clothes with a bit of bling, I got to wear two gorgeous dresses for the Strictly final on Saturday night. For the first show I wore an oyster silk dress by Petit S***pe, accessorised with a crystal-studded belt specially made by the show’s costume designers Chrisanne – it was embellished with 1,000 Swarovski crystals.

Then for the results show I slipped into a dramatic full-length strapless sequinned dress by hot new designer Rachel Gilbert, with fab jewels by Astley Clarke.

After 14 weeks of tans, tears and tantrums on the show, we saw people’s champions Chris and Ola take home the glitter ball trophy, while heart-throb Ricky Whittle had to make do with being runner-up.

It was probably the closest fought final we’ve ever had.

We’ve also seen love blossom this series, not once but twice, with sweethearts Ali and Brian and of course sizzling Strictly couple Joe and Kristina.

I might need two hats next year – watch this space!

The final was a family affair for me – Vernon did his Radio 1 show from the studio. He lives and breathes the show as much as I do, so he was in his element interviewing the celebrities and dancers. Phoebe came too, handing out chocolate hearts to all her favourite dancers (all of them!).

Vernon returned for the main event with his mate Chris Moyles, who could cut a few shapes on the dancefloor himself. Series Eight perhaps, Chris?

Yesterday I was filming the Strictly Christmas special and I can reveal Austin Healey has agreed to perform the paso doble topless! Expect the full gun show, girls.

I wish you all the best for Christmas and I hope Santa brings you all the fashion goodies you’re hoping for. See you for Strictly on Christmas Day.

Madonna Says Shoes Are More Satisfying Than Sex

“Madonna told me that buying a pair of my shoes is more satisfying than

having sex with a man. At least you know they are going to last for ever.” Legendary shoe designer Jimmy Choo on his most famous client.

Madonna’s album “Immaculate Collection” was recently named one of the gayest albums ever recorded. Meanwhile, the star herself was named a top female gay icon in a new online poll. She took the number five spot in a recent poll to find the world’s greatest pop star. Madonna is also one of the country’s most charitable stars: she has donated $5.5 million for Raising Malawi.

It has to be Choo: Hannah Sandling and her heels

average woman’s heart than men do, I wasn’t at all surprised. Absolutely nothing gets between me and my precious shoes – not even broken bones.

Last November, I fell off a cliff in Spain when I was rock climbing and wound up with my leg in plaster, but there was no way that I was going to let that stop me going to the Jimmy Choo sale. So I popped in on my way back from a hospital check-up – and bought five pairs.

This year, having booked in to get my wisdom teeth taken out, I’ve discovered that their sale starts on the same day. I’ve instructed my mother that the minute I’m discharged, she’s to wheel me straight over to the shop, even if I am still woozy from the anaesthetic.

I just love my Jimmy Choos, and could not bear to part with any of them. They’re the one thing I’d save if my house was burning down.

I’ve lost count of how many pairs of shoes I have, but there are probably 300 pairs at my house in London and another 400 pairs stored at my parents’ house in the country.

I love the way that they are all like individual pieces of art that represent different eras of my life.

As for why women assign more importance to them than they do to men, I think it’s simple. Shoes don’t care if you’ve gained a few pounds or haven’t washed your hair; they’re always going to fit you, however frumpy you’re feeling.

And you can totally transform your personality and mood by changing your shoes. Unlike men, they come with a feel-good guarantee.

good_shoes

Returning London based indie rockers Good Shoes have unveiled plans to host a four day mini-festival.

There’s much more to life than London. The inner city jungle is surrounded by weeds, with ‘London’ extending off into the English countryside. Hailing from one of these anonymous commuter towns, Good Shoes have turned their boredom into a relentless creative urge.

Becoming cult favourites after a series of limited edition singles, Good Shoes crafted the ode to small town ennui that is ‘Morden’. Named after their hometown the group tour almost incessantly.

Spending time working on their second album Good Shoes launched the new material with an enormous tour. Visiting virtually every nook and cranny of the British Isles the band left no stone unturned.

With second album ‘No Hope, No Future’ due to be released in the New Year the band have revealed plans for a festival with a difference.

Titled ‘Hope And Future’ Good Shoes are set to take over the Stag’s Head in London between January 20th – 23rd. A tiny venue, the band will cram in as many friends and guest stars as they can.

In addition to this Good Shoes will perform special matinee sets for younger fans, with early performances limited to those between 14-18. Amongst the guest stars lined up for the event are Hatcham Social, Fiction, Is Tropical, Wild Palms, La Shark and more.

With DJ sets from the likes of Mystery Jets, Blood Red Shoes and more ‘Hope And Future’ looks like a terrific way to kickstart 2010.

Good Shoes are due to host ‘Hope And Future’ between January 20th – 23rd.

Paris

France displays its unique style to the world: pleasant sand beaches, year-round snow peaks, green valleys and wilderness. The La Manche, the North Sea, the Atlantic Ocean and the Mediterranean Sea surrounded France form a long blue coastline over 5,500 km. Simultaneously, it brings a lot of beautiful costal cities with variety scene.Essential Tricks to Overthrow the Damages of your ugg bailedybutton The pink coast of Brittany Region, the silver coast Aquitaine region, and the small bay of the Côte d’Azur is using their colorful scenery and pleasant to welcome the visitors from around the world to come. Fashion News: cartier love ring are the Leader for Fall 2010 Some overseas provences in France have their own special exoticism, whcih has been called “France extends across three oceans” and you can find more fascinating scenery in there. Focus on the Reasons of the Popularity of pandora apple charm Vosges Mountains, Rula mountains, the Alps, central highlands and the Pyrenees mountains form a huge natural ski field every winter, and the world’s widest ski trails is located in France’s Haute-Savoie. Splendid!! ghds are the Favorite of Summer is an excellent out traveling season: France has 180,000 kilometers long winding paths, has mountain bike racing road with up to 45,000 kilometers and has the “viaferrata”, climbing facilities liked very much by nature-lover. Frach has abundant forest with oxygen. You may have a try “l’accrobranche” exercise when you are there. It is a new style exercise advocated by natural source protecters to climb freely in the forest. The river flows quietly not far away here, tourists paddling a boat on canal and drifting with boat house.

Although it will not let people have the feeling of doing intense exercise using the momentum of the water, it is also very wonderful. Besides, by taking parachute jumping near the cliff, gliding aircraft and hot-air balloon in the sky, you can overlook and enjoy the grand landscape of France. In France, there is no city similar to anthor one.

The cities in the same region have their own characters so that people could do nothing but generalize them into two categories: the southern city and the northern city. Various forms in there are its main features, as each place has its own land, stone, architecture and even the cultural atmosphere. As the time changes, they all have their own historical center, leaving over colorful historical and cultural heritage.

Some of the cities have been preserved well. Walking among the cities, just like baking to several centuries ago: a busy bazaar, merchants’ bargaining seemed to linger near the ear. The occasional car’s horn brings us back to reality, not lose direction in the space and time conversion.

Some other cities are just become the synonym of arts and crafts. With porcelain of Limoges, pottery in Gien, Glass’s perfume and Montelimar’s nougat, most cities has now become a shopping paradise. They are surrounded by the fashion goods, tables craft, home decorations, foods and cosmetology products.