Tuesday, November 08, 2011, 04:15 pm PT (07:15 pm ET)
Australian retailer ignores injunction, sells Galaxy TabAn Australian retailer continues to sell Samsung's Galaxy Tab despite a temporary country-wide injunction, ignoring threats of legal action from Apple.
Online electronics purveyor dMavo has sold and continues to sell the Samsung Galaxy Tab 10.1 in Australia under a temporary injunction, and is attempting a risky business restructuring to thwart legal action from Apple, reports The Sydney Morning Herald.
dMavo managing director Wojtek Czarnocki said that his company created "a new entity" to handle requests specifically for Samsung's tablet, hoping to sidestep legal issues related to the injunction by taking orders through a European server outside of Australian court jurisdiction and shipping the tablets from Asia.
Several Australian retailers have ignored Apple's threats and continue to profit from demand for the barred Samsung tablet. Apple has yet to seek any official legal action against the resellers, however the company is reportedly threatening to sue.
"Was Apple just bluffing or do they really want to play the cat and mouse game," Czarnocki asked. "We're up for it."
It would be relatively simple to extend Apple's injunction to individual online resellers because it already applies to device maker Samsung, said Melbourne law firm Watermark's senior associate and patent specialist Mark Summerfield. The iPad maker could apply to the Australian Federal Court for further injunctions even if a seller was based overseas, however it would be difficult to enforce without Apple asking international courts to cooperate.
"Moving the business unit, and the servers, offshore does not absolve them of liability for patent infringement in Australia," Summerfield said. "The acts of selling to Australian purchasers, and importing infringing products into the country, remain actionable as infringements."
The patent lawyer explains that independent Australian companies could be held liable for infringement, costs and damages in this particular case, adding that there is a precedent for such patent disputes.
"In June last year three people were jailed (one of them for three years) for contempt, after ignoring Federal Court injunctions relating to copyright and trademark infringement," Summerfield said. He goes on to allude that Czarnocki could be charged individually as "company directors are not immune from personal liability for decisions made on behalf of a company."
Czarnocki is expecting to sell the Galaxy Tab at least until Samsung's appeal which is set for Nov. 25. According to the dMova manager, Apple would have to bring the retailer to court before that date, which he claims is unlikely to happen.
"We'd be amazed, though not unprepared, should that occur," Czarnocki said.
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