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Not a copycat!

Published:Saturday | May 1, 2010 | 12:00 AM

Judge rules in favour of GraceKennedy in copyright case involving Paymaster

Barbara Gayle, Senior Staff Reporter


GraceKennedy Remittance Services (GKRS), which operates the bill-payment company Bill Express, had judgment awarded in its favour yesterday in the billion-dollar lawsuit which its competitor, Paymaster (Jamaica) Ltd, had brought against it seeking damages for breach of copyright


GKRS and computer programmer Paul Lowe were the defendants in the suit.


Paymaster had sued GKRS for damages for breach of copyright in respect of bill-payment software.


Lowe had sold a software programme to GKRS, but Paymaster got an injunction against GKRS in August 2000, which barred it from using the software.


Following the ruling yesterday in the Supreme Court, Paymaster is expected to pay millions of dollars to GKRS and Lowe.


Supreme Court Judge Roy Jones, who heard the suit, handed down judgment in favour of GKRS and Lowe on the issue of liability, with costs to be agreed or taxed.


The judge ordered an enquiry into damages suffered by the defendants based on the injunction Paymaster obtained in August 2000.


enquiry date to be set


Paymaster gave an undertaking as to damages when it obtained the injunction. The registrar of the Supreme Court is to set a date for the enquiry. Costs were also awarded against Paymaster.


Yesterday, Paymaster applied and obtained a six-week stay of execution of the court orders so it could take instructions as to whether it should appeal the matter.


Lowe, who was represented by attorneys-at-law Vincent Chen and Sylvan Edwards, had filed a counterclaim against Paymaster for damages, and he was awarded judgement on his counterclaim.


Damages are to be assessed on a date to be set by the registrar of the Supreme Court.


Attorneys-at-law John Vassell, QC, and Michael Hylton, QC, who represented GKRS, had challenged the allegations made by Paymaster.


Paymaster claimed copyright in the multi-payment software head-office programme and alleged that it had designed the architecture, provided the specifications, and contracted Lowe to write the software from specifications it provided.


Lowe licensed the software to GKRS, which used the programme for a few months in 2000 in its bill-collection business, Bill Express, before it was restrained by Paymaster.


sought passing-off


Paymaster accused GKRS of inducing Lowe to breach his contract with Paymaster, and sought damages against GKRS for passing off.


In throwing out Paymaster's suit, the judge said: "Lowe is the owner of the copyright in the Paymaster Multi-Payment Software and is entitled to license it to other persons. The cause of action for breach of contract and inducing breach of contract cannot succeed."


The judge, in clearing GKRS of all alleged breaches, said GKRS did not use Paymaster's business plan, but developed Bill Express from its own efforts, therefore the claim for breach of confidence was not made out.


The judge said there was no evidence of any confusion or deceit and, therefore, the claim for passing off had not been proved.


pleased with outcome


In a response from GKRS, Chairman and CEO Douglas Orane, said:


"We are pleased with the outcome of the judgement of the court, which has vindicated our position. This is a landmark judgement in the field of intellectual property law in Jamaica and is consistent with international precedents. We are particularly happy for the co-defendant Paul Lowe, who has suffered from not being able to earn a living from the fruits of his creation for the last 10 years because of the injunction obtained by Paymaster in 2000, which has prevented him from marketing his software from then up to the present time."


Paymaster also issued a response to the ruling, saying it was disappointed.


According to the statement, interim rulings over the 10 years the case was on the books by the Privy Council, the Supreme Court and the Court of Appeal, suggested there was value in Paymaster's position.


The statement contends that Lowe did not sell GKRS a "sterile copy of bill-payment software", but sold a copy of Paymaster's design. That copy, Paymaster contends, also had the company's business plan, which GKRS used to compete with it.


Paymaster will be appealing the ruling, the statement said. 


 




PRESS RELEASE


 


JUDGEMENT DELIVERED IN FAVOUR OF GRACEKENNEDY REMITTANCE SERVICES LIMITED IN PAYMASTER SUIT



The Supreme Court has ruled in favour of GraceKennedy Remittance Services Limited (“GKRS”) and software developer, Paul Lowe, in the suit brought against them by Paymaster Limited (“Paymaster”).


 


The Court also ruled in favour of Mr. Lowe in his claim for damages against Paymaster for losses he suffered as a result of Paymaster’s actions.


 


In his judgment delivered today, April 30, 2010, Mr. Justice Roy Jones outlined the Court’s findings that:


 


(i)            Paymaster did not own the copyright in the software. Paul Lowe is the author and owner of the software at issue in this case and that he never intended to assign his ownership to Paymaster.


ii)          GKRS did not use Paymaster’s business plan, but developed Bill Express from its own efforts. The Claim for breach of confidence has not been made out.”


iii)         GKRS did not ‘pass-off’ its Bill Express business as that of Paymaster’s. The Judge stated that “There is no evidence of any confusion or deceit and so the claim for passing-off has not been proven on balance.”


(iv)         As Paul Lowe is the owner of the copyright in the software and is entitled to license it to other persons, the cause of action for breach of contract and inducing breach of contract cannot succeed.


 


The Court also ordered an enquiry into damages to be paid by Paymaster to GKRS and Paul Lowe for losses they suffered as a result of the injunction granted on the application of Paymaster in 2000.


 


Costs in the suit were awarded to GKRS and Paul Lowe to be paid by Paymaster.


 


In response to the ruling in favour of the GraceKennedy subsidiary, the Group’s Chairman and CEO, Mr. Douglas Orane, said “We are pleased with the outcome of the judgment of the Court which has vindicated our position. This is a landmark judgment in the field of intellectual property law in Jamaica and is consistent with international precedents. We are particularly happy for the Co-Defendant Paul Lowe who has suffered from not being able to earn a living from the fruits of his creation for the last 10 years because of the injunction obtained by Paymaster in 2000 which has prevented him from marketing his software from then up to the present time. ”


 


GKRS was represented in the action by B. St. Michael Hylton, Q.C. and John Vassell, Q.C. instructed by Courtney Bailey and Teri-Ann Lawson of DunnCox.


 


Douglas Orane


Chairman & CEO


GraceKennedy Limited


April 30, 2010




Download Paymaster vs GKRS, Paul Rowe Ruling (PDF)