Following its wins in recent years against Metricon Homes and Carlisle Homes, Porter Davis Homes has now had a third copyright victory in respect of another competitor found to have copied its highly successful Seattle and Memphis house designs, this time against Dennis Family Homes.
Porter Davis prides itself on its innovative designs and has been vindicated in its decision to protect its rights by issuing proceedings against competitors for copyright infringement.This decision comes after a legal battle that was started by Porter Davis Homes almost six years ago and has now seen three of Melbourne's top builders being held to have copied and infringed Porter Davis Homes' house designs.
Whilst Porter Davis Homes does not know the precise number of houses which have been built by its competitors who have been found to have copied its Seattle and Memphis house designs, it believes the total number is in the thousands.
In 2005, Porter Davis Homes issued proceedings in the Federal Court of Australia against Dennis Family Homes alleging that it had infringed the copyright in Porter Davis' original house design known as the Seattle and its later generation version of the design, the Memphis.
On 18 March 2011 Justice Dodds-Streeton of the Federal Court of Australia delivered her Judgment in the proceeding.
Porter Davis' original design was found to have been copied by Dennis Family Homes in 7 of its designs marketed and sold extensively by the builder. The Dennis Family Homes houses and plans known as the Grange 291, Grange 322, Thornton 310, Esperance, Flinders 270, Flinders 290 and Flinders 310 were found to have infringed copyright in the Porter Davis houses and plans by copying the "alfresco quadrant" feature of those designs.
Justice Dodds-Streeton found that the "alfresco quadrant" in the Porter Davis Homes designs was "both striking and distinctive" and agreed with the findings in the cases against Metricon Homes and Carlisle Homes that the "alfresco quadrant" was a substantial part of the Porter Davis Homes' designs and deserving of copyright protection.
The Judge found that there was no evidence of the "alfresco quadrant" feature being present in any houses or plans that pre-dated the Seattle – "the [Seattle's] particular and highly effective combination of mutually related spaces and indoor-outdoor connection differed materially from those of the various houses which included an alfresco prior to the Seattle".
The judge found that the key Dennis Family Homes witnesses, who denied reference to or copying the Porter Davis Homes' design and asserted an alternative account of creation of the designs, were evasive, unreliable and defensive and rejected their evidence.
This follows on from the earlier findings made against Metricon Homes and Carlisle Homes. Metricon Homes' copying of the Seattle design, and the conduct of those involved, was found by the Court to have been "deliberate" and "conscious" and the Court found that Metricon had "a corporate culture which accepted the copying of competitors' designs". In the Carlisle Homes case, the directors of Carlisle Homes were found by the Court to have given "consciously untrue evidence" and "colluded in doing so". Carlisle Homes was found to have deliberately copied the alfresco quadrant because it was commercially successful, and to have invented a false account of creation of their house design.
Tony Watson, partner of Middletons who acted for Porter Davis, said "this case yet again confirms that copyright infringement proceedings focus on how a person created their design and whether they had reference to another's work and whether in creating their design they have reproduced a substantial part of the other person's work".
"Sometimes proceedings in Australian Courts take a long time and can be expensive, however often the true story of the creation of a copyright work is not revealed until all the documents have been carefully scrutinised and the witnesses have been extensively cross examined at trial and the full history has been pieced together."
"We are very pleased for Porter Davis as it has yet again defended the originality of its innovative designs and sent a further warning to competitors not to copy its original designs or action will be taken."
Anthony Roberts, Managing Director of Porter Davis, said that Porter Davis was very pleased with the decision.
Mr Roberts said that "this decision, which comes after a long and expensive battle that started almost six years ago, reinforces that Porter Davis will take action to protect its original designs.
"Porter Davis invests a lot of money and time into developing new and innovative designs to seek to appeal to the discerning buyer and it also will invest resources in seeking to protect those designs."
This decision, like the previous decisions in the cases against Metricon Homes and Carlisle Homes, is especially relevant to architects, designers, draftsmen, builders and others in the building industry. The industry should remain aware of the legal consequences of having had reference to other builder's plans and designs.
Porter Davis Homes has also claimed that four additional Dennis Family Homes' designs (being the Flinders 301, Flinders 331, Flinders 361 and Lancaster 281) infringe copyright in the Seattle design. These houses continue to be offered for sale by Dennis Family Homes.
These claims, as well as the damages to which Porter Davis is entitled, will now be determined by the Court.
Porter Davis Homes will seek from Dennis Family Homes either an award of damages or an account of profits (being the profits it has earned as a result of each individual house it has built and sold according to the seven Dennis Family Homes designs), as well as its costs and interest.
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