It’s risky business
bringing proceedings
for IP infringement
without proper
legal advice.

A self-represented Debra Crocker
learnt this the hard way over a series
of court proceedings, which saw
her sentenced to time in prison for
contempt of Court and prohibited
from instituting proceedings in the
Federal Court with limited exception.

Following these recent proceedings 1 ,
Justice Reeves of the Federal Court
made orders restraining Ms Crocker
from making further unjustified
threats of infringement proceedings
and repeating false, misleading
or deceptive representations in
contravention of ss 18 and 29 of the
Australian Consumer Law (ACL).

Background In the mid-90s, Ms Crocker operated
a company that manufactured
and supplied child car-safety
restraints. When the company
ceased trading in 1998, one of its
customers, Infa Products, began
manufacturing the child restraints
itself, marketed as the ‘Securap’.

In 2006, Infa Products agreed to pay
Ms Crocker a royalty, in the belief
she held a patent over the Securap.

However, it declined to make further
payments, when it came to light that
the patent had lapsed. The company
(and its corporate successor,
Infa-Secure) then continued to
market the Securap until 2014.

In 2014, Ms Crocker commenced
proceedings against Infa-Secure
and three of its retail customers for
trade mark infringement, copyright
infringement, misleading or
deceptive conduct and passing off.

Infa-Secure Pty Ltd v Crocker (No 3)
[2018] FCA 605
2
Infa-Secure Pty Limited v Crocker
[2015] FCA 830
1
Proceedings against Ms Crocker
However, she was later found
guilty of contempt of Court for
Before discontinuing the
breaching her undertaking 2 and
proceedings against Infa-
was sentenced to a term of 13
Secure, Ms Crocker sent a
weeks imprisonment (11 weeks
series of inflammatory emails
of which were suspended).

to retailers of baby/children’s
products, which included
Infa-Secure then sought a permanent
untrue representations that:
injunction against Ms Crocker,
restraining her from repeating
Infa-Secure infringed Ms
the representations. It
Crocker’s intellectual
further sought a
property by
declaration under
supplying the
s 202 of the
Securap Ms Crocker’s
Copyright Act
Infa-Secure various
proceedings that Ms Crocker’s
committed threats of action
serve to highlight
a criminal
for copyright
offence by
the importance of
infringement supplying
exercising self-
were the Securap
unjustifiable, restraint in alleging
the together with an
infringement of
addressees injunction against
your IP.

would the repetition
commit a
of such threats.

criminal offence by
In May 2018, Justice
supplying the Securap
Reeves found that Ms Crocker
retailers of the Securap
had contravened ss 18 and 29
would be liable to account to
of the ACL and that Infa-Secure
Ms Crocker for proceeds of the
was entitled to the above relief.

sales Look before you leap –
those trading in the Securap
always seek advice first
were liable to civil suit by
Ms Crocker’s various proceedings
consumers purchasing the
serve to highlight the importance of
Securap exercising self-restraint in alleging
Ms Crocker was entitled to
infringement of your IP. Tread
possession of Securaps in a
carefully and always with legal
trader’s possession
advice, as certain representations
Infa-Secure and the retailers
may amount to false, misleading or
acted in disregard of children’s deceptive conduct. Furthermore,
welfare in trading in the
threatened parties can apply
Securap. to the Court for relief, including
an injunction to prevent further
In response, Infa-Secure
threats and damages for loss
brought separate proceedings
suffered as a result of the threat 3 .

against Ms Crocker, claiming
her representations were false,
misleading or deceptive in
contravention of ss 18 and 29 of
the ACL. Infa-Secure sought an
interlocutory injunction restraining
Ms Crocker from repeating the
representations and she gave
undertakings to this effect.

See Trademarks Act 1995 (Cth) s 129, Patents
Act 1990 (Cth) s 128, Designs Act 2003 (Cth)
s 77 and Copyright Act 1968 (Cth) s 202
3
Alexis Keating, IP Lawyer
LLB (Hons), BSc
alexis.keating@pof.com.au Inspire September 2018
What a Crocker...

Groundless threats result
in permanent injunction
02