NGAI KWONG INDUSTRIAL CO LTD AND ANOTHER v. KENIC PLASTIC FACTORY LTD

IN THE HIGH COURT OF JUSTICE, HONG KONG

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JUDGMENT

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1. This application for summary judgment is refused. In the usual way an application of this kind should be made to the Master in the first instance. I think, perhaps, that here it was proper for the plaintiff to bring the application before me because there had been previous proceedings before Mr. Justice Barnes in which application the plaintiff succeeded in obtaining an interlocutory injunction restraining the defendant from manufacturing and marketing two particular kinds of hair-dryer which was said to infringe the plaintiff's copyright in the design of their own hair-dryers. That order was obtained by consent and was expressed to continue until the trial or further order.  Subsequent to the obtaining of that order a statement of claim was served and a summons taken out for summary judgment.

2. There are, as I have indicated, two hair-dryers the design of which forms the subject matter of this part of the action: a large one and a small one. It is not seriously contested that the defendant's hair-dryer in its large and small finished form closely resembles those of the plaintiff's.  By affidavit the defendant raises two matters of defence. First it says in relation to both the lure hair-dryer and the small hair-dryer that copyright in the design does not subsist in the plaintiff. It says that because it claims on affidavit or affirmation that at the date when the plaintiff through his employees prepared its design those desins already existed and were the basis for the manufacture of similar hair-dryers; and exhibited to the affirmations put in by the defendant are illustrations of hair-dryers which it said were in existence prior to the making of the plaintiff's design. So originality is contested and hence copyright is in issue.

3. Secondly it is said in relation to the small hair-dryer that in any event although the defendant's hair-dryer closely resembles that of the plaintiff's, it does not infringe any copyright which might subsist in the Plaintiff's design drawings in that both the plaintiff's finished model and that of the defendant's differ inn material respect from the design drawings.

4. I have said that there are really only two main matters raised by way of proposed defence in the affidavit. I do not think that is entirely accurate and I ought to remark that Mr. Collins reserves his position. For the purposes of these proceedings those are the two main matters relied upon. There is some suggestion put forward that in any event copyright would not subsist in the plaintiff's as such but in the individuals who prepared the design deawings but that is not be the matter which is being pressed upon me if for no other reason than that I did not call upon Mr. Collins to respond to the application made by Mr. Luk.

5. Well, it seems to me that the matters which are raised on affirmation do give rise to the trial of an arguable issue. It is not for me at this stage to determine the merits on affidavit evidence or on affirmation of that defence but it is a matter or they are matters which seem to me to raise issues both of fact and law and issues which will have to be resolved at trial and these applications or this application is, as I may have indicated at the beginning, therefore dismissed. It has been argued that the matters raised by way of defence are so transparently lacking in substance that leave to defend should not be given. I do not think that is right. There will be leave to defend and since the plaintiff already has protection in the form of interlocutory injunctions, I do not think it could be argued in law, and it has not before me, that leave should be made conditional. Therefore leave to defend will be unconditional.