In 2009, the 30th Anniversary of the first Fairlight CMI sale, I decided to develop a thirtieth anniversary commemorative reissue of this iconic instrument. The ‘CMI-30A’ looked and performed like the original CMI, but used modern technology which was much more affordable.
At that time a company called Fairlight.au (“F.au”) claimed ownership of the Fairlight trademark, so I entered into a contract with them to use the trademark. The contract also provided that I would pay Fairlight.au to develop the software I would require for the new CMI.
A key decision, which later led to disaster, was to use Fairlight.au’s proprietary “Crystal Core” audio processor board as the heart of the design.
Shortly after PVI started selling the CMIs, F.au refused to supply the Crystal Core and stopped developing the software. F.au also incorporated PVI’s software into F.au’s own products.
F.au claimed they were entitled to terminate the contract because PVI had used the trademark in ways that were outside the licence, and sued PVI for infringement under the Trade Marks Act.
PVI cross-claimed that F.au had wrongly terminated the contract and infringed PVI’s copyright in the software. PVI sought damages on both grounds.
When the matter was finally heard three years later, Edmonds J found in favour of F.au and dismissed PVI’s cross-claim: Fairlight.AU Pty Ltd v Peter Vogel Instruments Pty Ltd (No 3)  FCA 1422
PVI appealed. Michael Green SC appeared for PVI. The Full Court found that F.au had repudiated the contract and infringed PVI’s copyright: Peter Vogel Instruments Pty Ltd v Fairlight.Au Pty Ltd  FCAFC 172 The quantum of damages was remitted to a single judge. I prepared and presented the case for PVI.
On remittal, Nicholas J ordered F.au to pay PVI damages of roughly $500,000 and that PVI pay F.au a nominal amount for unauthorised use of the trademark: PKT Technologies Pty Ltd (formerly known as Fairlight.Au Pty Ltd) v Peter Vogel Instruments Pty Ltd  FCA 1587
F.au appealed the damages award, arguing that PVI could not prove any damage and the award should be zero. PVI cross-appealed, arguing that the $500,000 damages was manifestly inadequate and that damages should reflect some $9 million of profits that would have been made had F.au not repudiated the contract. I wrote the submissions and represented PVI at the appeal which was heard by the Full Court on 9th May 2019. At the time of writing (August 2019) judgement is still reserved.