Carlisle Homes loses injunction bid in copyright case
Intellectual Property June 27, 2018 10:32 pm By Cat Fredenburgh | Melbourne

A judge had denied home builder Carlisle Homes’ bid for a temporary injunction in a case alleging rival home builder Resimax violated its copyright for residential homes designs, instead ordering that the case move swiftly to trial.

Carlisle sought an injunction barring Resimax unit Tick Homes from building, selling or offering for sale any houses based on the allegedly infringing designs. It argued that it would suffer financial and reputational harm if Tick was not enjoined, and that the harm would be difficult to quantify.

Justice Bernard Murphy denied the injunction request on Wednesday, saying the balance of convenience weighed in favor or Resimax. The judge said that as a new business, Tick Homes could suffer “serious damage” if the injunction were granted, and that an injunction would be beset with difficulties.

“I accept that it would be open to Tick Homes to prepare a fresh set of plans without reference to the Carlisle Homes Plans, but such a process is likely to be more fraught with difficulty than Carlisle Homes says. Tick Homes says that its plans contain common features demanded by consumers which are commonly found in project home plans, and it is not plain to me that Tick Homes could speedily create new plans that satisfied Carlisle Homes that they were made without reference to the Carlisle Homes Plans and which meet the requirements of the market,” Judge Murphy said.

“Rather than enjoining Tick Homes it is appropriate to order a speedy trial of the proceeding to allow a final determination of the issues.”

The judge also found the potential damage to Carlisle’s business was “calculable under established principles” and that damages would serve as a sufficient remedy in the event of a judgment against Tick.

If the case moved to trial within the next six months, Tick was unlikely to build many more houses based on the allegedly infringing plans, the judge added.

Carlisle alleges nine home designs by Tick, which were prepared with the input of a former Carlisle employee, Darren Mehl, copy Carlisle’s home design plans substantially and violate it copyright for the plans.

Mehl was previously employed by Carlisle Homes as General Manager of its Easy Living business from April 2015 until April 2017, and he had access to the Carlisle’s home designs, the lawsuit claims.

Carlisle alleges Tick’s home plans were created by reference to Carlisle’s plans without its approval and that the evidence of copying is “overwhelming”, including the fact that Mehl worked at Carlisle, that Tick has failed to produce evidence that the designs were created without copying, and that the designs have numerous distinctive features in common.

Tick says Carlisle’s case is weak and argues the similarities between the plans reflect features that are in high demand by the market – such as open plan kitchen/dining/living areas, an alfresco dining area, a main bedroom with ensuite bathroom and walk-in robe, among other features. It also says that as a volume builder of low-cost housing, Carlisle markets its homes as quality, good value homes that can be completed quickly. It does not market the homes based on distinctive features, Tick says.

Judge Murphy said although there was “a high level of objective similarity” between the builders’ home plans, the question of whether there was copying was one for trial.

Carlisle and Resimax did not respond to requests seeking comment on Wednesday.

Carlisle was represented by Tom Cordiner QC with List G Barristers, Angus Christophersen with Dever’s List and solicitors for K&L Gates. Resimax and Tick were represented by Peter Wallis with List G Barristers and solicitors with Aitken Partners.

The case is Carlisle Homes Pty Ltd v Tick Homes Pty Ltd & Ors.

The following two tabs change content below.

Cat Fredenburgh

Cat Fredenburgh has been covering legal news for 12 years. She was previously Editor-in-Chief at US legal news publication Law360. She is the Co-Founder of Lawyerly.