SILVERLIT TOYS MANUFACTORY LTD v. MANGO\'S (HK) LTD

HCA267/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 267 OF 2007

----------------------------------

----------------------------------

-----------------------------

J U D G M E N T

-----------------------------

1. This is the plaintiff’s application for summary judgment under Order 14 against the defendant.  The claim is one for breach of copyright.

2. Both the plaintiff and the defendant are companies incorporated in Hong Kong.  The plaintiff carries on business as a designer, manufacturer, distributor and trader of toys for children of all ages.

3. One of the toys produced and distributed by the plaintiff is a toy helicopter known as “PicooZ”, model no. 8516 (“the plaintiff’s Product”).  In short, it is the plaintiff’s case that the plaintiff’s Product was developed by the plaintiff together with an internationally well-known Belgian designer of microrotorcraft and thus they own the copyright over the drawings in respect of the plaintiff’s Product.  The relevant drawings are set out in paragraph 3 of the Amended Statement of Claim (“the Drawings”).

4. Having considered the evidence before this court (especially the 2^nd Affirmation of Choi So May filed herein on 27 May 2009), I am satisfied that the Drawings are artistic works and that the plaintiff is the owner of the copyright over the Drawings.  Further, I am equally satisfied that such copyright at all material times subsisted and still subsists.

5. The next issue is whether the plaintiff has established infringement of copyright by the defendant.

6. According to the plaintiff, the plaintiff’s Product is a huge success since it was launched into the market.  However, the plaintiff soon discovered that there were infringing items in the market and that one of the infringers is the defendant.

7. The events leading to the discovery of the infringing activities complained by the plaintiff as well as the subsequent investigation are set out in the aforesaid 2^nd Affirmation of Choi So May and also the Affirmation of Chow Suk Yin Ada filed herein on 6 February 2007.  I do not think I need to repeat the evidence here.  Put shortly, the defendant marketed and offered for sale four types of toy helicopter.  The first one is called the “Hummer”, model no. MA00509.  The others are model nos. MA00511, MA2950-03 and MA00473.

8. On a visual comparison, there are striking similarities between the plaintiff’s Product and the defendant’s helicopters.

9. Notwithstanding the detailed evidence put forward by the plaintiff, the defendant has only filed one very short Affirmation through its solicitor Mr Raymond Chan.  Apart from a bare denial of the plaintiff’s claim, this Affirmation only exhibits a draft defence.  However, the draft defence is likewise no more than a bare denial.  No positive case is put forward by the defendant.  In particular, there is no evidence from the defendant regarding how, if at all, it developed or designed its toy helicopter.

10. Apart from the bare denial, one notable feature in this case is the existence of a comparison table (see “CSM-66” to the aforesaid 2^nd Affirmation of Choi So May).  This comparison table was prepared by the defendant and forwarded to the plaintiff’s customers in order to convince them that there are (allegedly) differences between the plaintiff’s Product and the defendant’s toy helicopter.  However, when one looks at the table, the similarities between the plaintiff’s Product and the defendant’s toy helicopter cry out for an explanation.  Yet, none is forthcoming from the defendant.  As pointed out by the plaintiff, and I agree, the existence of this comparison table shows that the defendant was well aware of the plaintiff’s Product.  It is also in my view a strong piece of circumstantial evidence to show that the defendant copied the design of the plaintiff’s Product.

11. In the circumstances, I am satisfied that the defendant has no defence to the plaintiff’s claim and there are no other reasons for trial.

12. I now turn to the order requested by the plaintiff.  A draft order is annexed to the Order 14 Summons issued by the plaintiff dated 27 March 2009.   In the course of submissions by counsel for the plaintiff, I raised issues as to certain days set out in the draft order.  I propose to change the reference to 7 days in sub-paragraph 4 to 14 days and also the reference to 10 days in sub-paragraph 5 to 14 days.  Subject to those two amendments, I would make an order in terms of the draft order as annexed to the plaintiff’s Order 14 Summons dated 27 March 2009.