Case: Campomar Sociedad Ltd v Nike International Ltd (2000) 46 IPR 481
Outcome: referred to
As earlier foreshadowed, UBI has pleaded further causes of action upon the footing of conduct on the part of TV Plus in trade and commerce in Australia in contravention of ss 52 and 53(a), (b) and (d) of the TP Act, said to be constituted by the making of false, misleading and untrue representations to members of the public, and/or persons interested in receiving ethnic television broadcasts, to the effect that: (i) TV Plus held the right to broadcast the BHT-1 channel in Australia; and (ii) The rebroadcasting of the BHT-1 channel by TV Plus and the efforts of TV Plus to obtain subscribers based on their purported right and capacity to broadcast the BHT-1 channel was duly authorised by JRTS. For the purposes of establishing moreover liability for misleading and deceptive conduct under s 52 of the TP Act, TV Plus emphasised that there must be a relevant misrepresentation in order to be actionable, the Court being referred by TV Plus in that regard to Campomar Sociedad Ltd v Nike International Ltd (2000) 46 IPR 481 at 508-509; however there had been no representation by TV Plus concerning UBI's own broadcasts, that is, those broadcasts in relation to which UBI might own the copyright, so the TV Plus submission continued, because TV Plus had made those broadcasts from Australia. Nothing in the advertising or promotional activity otherwise of TV Plus was said by it to have suggested any association with UBI , and therefore no issue with respect to ss 52 or 53 of the TP Act arose adversely to TV Plus , so TV Plus further asserted. Essentially or largely, the same circumstances pleaded by UBI for breach of copyright were relied upon to support those pleaded causes of action. Damages and injunctive relief were similarly or correspondingly sought by UBI , in line with the relief sought for breach of copyright. 52 As to the issue of contractual entitlement, TV Plus submitted that there could be no misrepresentation relevantly to be imputed to TV Plus , in view of the fact (being a fact in issue from UBI's perspective) that there was a subsisting agreement between TV Plus and JRTS reached earlier on 4 January 2005 and which, among other things, constituted TV Plus Operations in particular as an exclusive licensee of the BHT-1 Channel along with 'its programming contents together with all associated rights ...'. While the purported grant of broadcast rights in the nature of copyright to TV Plus may have been nugatory because broadcasts from Bosnia and Herzegovina are not protected in Australia under the Copyright (International Protection) Regulations 1969 , so that TV Plus submission continued, so much was said to indicate that there was in any event a pre-existing contractual relationship between JRTS and TV Plus . Moreover TV Plus asserted that although it was said by UBI to have been acknowledged by TV Plus that there had been an earlier rejection by JRTS of any subsisting contractual obligation on its part in favour of TV Plus , nevertheless that any such rejection had occurred otherwise than within the terms of the TV Plus/JRTS contractual arrangements, and had not been in fact accepted by TV Plus . In that context it was further said by TV Plus to be beside the point for UBI to assert that TV Plus had never made payments under those arrangements, since TV Plus had always acknowledged its contractual liability to make such payments, though it maintained that the time for making even the initial payment falling due to JRTS has not yet crystallised for payment in favour of JRTS . In that regard, TV Plus asserted that no payment was due and payable under that TV Plus/JRTS agreement during the first six months of its term, yet the purported termination by Mr Hadzijamakovic on behalf of JRTS took place before the end of that six months period. 53 The foregoing circumstances propounded by TV Plus were therefore said by TV Plus to provide a firm basis for its asserted continuing belief that TV Plus was entitled to take the broadcast signals from JRTS originating in Bosnia and Herzegovina, and to distribute the same in Australia, and that accordingly the representation said to arise from the conduct of TV Plus was not misleading. Hence TV Plus submitted therefore that there was no prima facie case or serious question arising at least as to the first misrepresentation pleaded by UBI against TV Plus. Once again there needs to be pointed out the difficulties as to giving expression to the TV Plus case in circumstances where it has (at least thus far) withheld from joining JRTS as a third party to the proceedings.