Pole Dancing Pole Troll Breaches Parole, Back Under Control

Vertical Leisure Limited & Anor v Auz Origin Pty Ltd & Anor [2016] FCCA 2372 [1]

On 25 October 2016, the Federal Circuit Court in Sydney found that the respondents, Auz Origin and Mr Chen, engaged in infringing conduct relating to pole dancing poles and promotional material owned and sold by the applicants, Vertical Leisure Limited and Dance4Me.

The applicants sell the X-Pole, a pole used for pole dancing. The applicants alleged that the respondents sold inferior copies of the X-Pole, passing these off as the applicant’s products, and breached copyright and trade marks associated with the X-Pole.

In a straightforward case of infringement, Judge Driver found that the respondents:
sold infringing poles on several websites (including Gumtree and eBay)
included in their promotional material words protected by registered trade marks owned by the applicants
made representations and passed off that the poles were X-Poles, and
without a licence from the applicants, distributed copyright material including instructional manual artwork, X-Pole brochures, photographs and the X-Pole instructional DVD.

As such, the respondents infringed copyright and trade marks owned by the applicants and engaged in conduct that was in contravention of the Australian Consumer Law, as well as passing off. 

Mr Chen was also a respondent in a previous iteration of this litigation, as a director of Skyrunner (Vertical Leisure Limited & Anor v Skyrunner Pty Ltd & Anor [2014] FCCA 2033). [2] Judge Driver found that Mr Chen was the “controlling mind” of a series of corporate entities (including Skyrunner and Auz Origin) that carried out sales of infringing poll dancing poles and was liable as a joint tortfeasor.

Judge Driver granted an injunction and delivery up of the infringing material. Having established liability, the Judge sought submissions on remaining issues relating to damages and contempt of court.

[1] https://jade.io/article/498338
[2] See our case note Pole Dancing Pole Trolls Rolled and Under Control