Tiny Intelligence Limited v Resport Limited

Tiny Intelligence owned artistic copyright in designs for a toy sword and a toy trumpet. Reproductions were sold to Crusaders rugby supporters.

The High Court found that Resport's copying was knowing and intentional, repeated and substantial. It was not a borderline similarity dispute. Resport had formed the view that the products could not attract copyright and took no steps to check.

The Court permanently restrained the infringement and ordered delivery up of infringing copies and production materials. For money relief, Tiny chose an account of Resport's profits.

The High Court fixed those profits at $50,000. Tiny then argued that the flagrancy of the conduct justified additional damages under section 121(2) as a further, separate award.

Damages and an account of profits are alternative responses to the same infringement. One measures the claimant's loss; the other measures the defendant's gain. The owner elects the route that better fits the evidence and commercial objective.

The Supreme Court held that section 121 additional damages remain damages. Parliament had not created a new stand-alone remedy that could be added after the owner chose an account. Tiny therefore kept the $50,000 profit award but received no additional damages.

At the beginning of a claim, preserve evidence for both routes. The owner should document lost sales, price erosion, remediation and reputational effects. It should also seek information about the infringer's units, revenue, costs and margins.

The final election should follow an evidence-based comparison, not instinct. An account may be attractive where the infringer earned more than the owner can prove it lost. Damages may be stronger where the owner's loss is substantial or additional damages are realistically available.