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Microsoft takes Melbourne reseller to court over alleged infringement

Microsoft takes Melbourne reseller to court over alleged infringement

CPL Notting Hill is fighting the vendor's allegations in court

Microsoft Australia has taken legal action against Victorian reseller, Computer & Parts Land (CPL) Notting Hill over alleged software copyright infringement.

CPL is a Melbourne-based computer hardware and software retailer with retail outlets and an online store providing Australia-wide shipping - the company’s head office is in the Melbourne suburb of Notting Hill.

The organisation resells products from vendors such as Asus, Cisco, Samsung, Hitachi and Fuji Xerox, in addition to Microsoft.

Microsoft said it commenced proceedings against CPL Notting Hill, and the business’ sole director after purchasing a new computer system from CPL Notting Hill in late 2015.

The new PC allegedly had affixed upon it a Microsoft Authorised Refurbisher Certificate of Authenticity, and a copy of Microsoft Windows 7 Professional installed, a Microsoft spokesperson told ARN.

The legal action, which is being heard in the Federal Circuit Court of Australia in Sydney, revolves around allegations of copyright infringement associated with CPL Notting Hill’s use of Microsoft’s Windows software in some of its products.

The case has already resulted in two interlocutory applications, which were heard before the court on 4 August 2017. Interlocutory proceedings are used for dealing with a specific issue in a matter, usually between the filing of the initial application and the final hearing and decision, and may be employed to gain interim relief, such as an injunction, during a case.

One of the two interlocutory applications arising from the case was an application by Microsoft for discovery to be given by CPL Notting Hill which, if granted, would require certain documents or records to be produced by the reseller for the purposes of the case.

The court said that, ultimately, it was satisfied that it was appropriate for limited discovery to be made.

At present, however, there is substantial dispute between the individual parties as to the extent to which there has been alleged infringement, and the legal representatives for CPL Notting Hill and its director have criticised the pleadings in relation to proposed discovery orders.

For its part, CPL Notting Hill has taken issue with the infringement allegations by Microsoft, and has asserted that it was not familiar with the vendor’s refurbisher program.

However, in a judgement handed down 4 August, the court stated that CPL's records in relation to the sale of Microsoft Windows software with or without a computer did “not distinguish between the Microsoft Windows refurbisher products and the non-refurbisher products”.

Regardless of the dispute as to the extent to which there has been alleged infringement, the court granted Microsoft limited discovery, and found it was appropriate for the orders to extend to both Microsoft Windows 7 Professional and Microsoft Windows 7 Home Premium Programs.

Leave was also granted to join another entity as a respondent in the case.

As the case currently stands, the court did not grant CPL Notting Hill's application to transfer the proceedings to Melbourne, deciding that it is appropriate that the matter remain before the current court in Sydney.

CPL Notting Hill has since lodged an appeal in respect of the order for discovery and the order for the venue of the proceedings.

The case continues.

CPL Notting Hill had not responded to ARN's queries at the time of writing.


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