The thrust of copyright law is to stop others from copying the work without permission. There is an important distinction between two types of infringement:

  • Primary infringement; and
  • Secondary infringement

Primary infringement is where an infringer has copied a copyright work. Typically this is where the infringer manufactures a product which copies the design of someone else’s product.

Secondary infringement is where the infringing company has not made the infringing product itself but typically has imported it from overseas, often not knowing that it is an infringing product.  If the importation was innocent (the importer did not know or did not have reason to believe that the product was infringing) then the copyright owner will only be entitled damages from the time the importer is made aware of the copyright works. A plaintiff may still obtain an account of net profits from an innocent infringer and is still entitled to an injunction to restrain further sales of infringing product.