Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd  FCA 986 (30 September 2013)
In earlier proceedings, Allam v Aristocrat Technologies Australia Pty Ltd  FCAFC 34, the Full Federal Court found two instances of copyright infringement through use of fake Aristocrat compliance plates and counterfeit software in second hand gaming machines assembled in Australia and sold in South America. However, the Full Court found the trial judge, Jacobson J was in error in making certain findings by relying on emails improperly admitted into evidence for a different purpose.
The matter was remitted back to the trial judge to determine (1) the appropriate relief for the copyright infringement and (2) a claim by Aristocrat for trade mark infringement. The latter claim was based on the acts of inserting fake compliance plates and counterfeit software in the gaming machines and then placing them back into trade badged with the Aristocrat trade mark.
The trial judge rejected the proposition that ”a person who affixes a mark to goods so as to indicate a connection between the goods and the owner of the registered mark does not infringe the trade mark”. Rather, the judge referred with approval to Paul’s Retail Pty Ltd v Lonsdale Australia Ltd  FCAFC 130 for the proposition that “the sale of goods bearing a mark applied without the consent of the owner infringes the mark because the mark is used to indicate, contrary to the fact, a connection between the goods and the registered owner. That is to say, the mark is used in a manner in which it is not in truth a badge of origin of the registered owner’s goods”.
Unfortunately Aristocrat could not establish trade mark infringement because its evidence did not prove which of the machines contained counterfeit Aristocrat compliance plates and game software.