Can I win a case without direct evidence of infringement?
Updated: Sep 16, 2021
Without the infringing goods, or some direct evidence of infringement, a court will not be able to make a finding of trade mark infringement in your favour and it will not be worth commencing court proceedings.
This was shown in the case of Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd  FCA 986.
Aristocrat is a well known Australian producer of gaming machines.
Global contracted with Mr Riad Allam to refurbish Aristocrat gaming machines to sell in foreign markets, particularly in South America.
Mr Allam used pirate copies of computer programs in the refurbished gaming machines. These programs contained pictures and compliance plates owned by Aristocrat.
Global and Mr Allam admitted that they used the trade marks but denied that this was an infringement.
The judge found 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".
However, Aristocrat failed to produce evidence of a single machine containing a counterfeit compliance plate or a counterfeit game, so their case was dismissed. The case against Global was based on circumstantial evidence, rather than direct evidence. The judge could not make a finding of trade mark infringement. The case was dismissed and Aristocrat was ordered to pay Global's legal costs.
All that the judge could do was order declaratory relief to mark the Court's disapproval of the respondent's conduct. Declaratory relief refers to a judgment of a court which determines the rights of parties without ordering anything be done or awarding damages.