Frisbee injunction granted

Press, 29 October 1981, Page 6

Frisbee injunction granted

PA Auckland Mr Justice Moller ruled in the High Court at Auckland yesterday that Lincoln Industries, Ltd, had been producing frisbees under an arrangement aimed at deceiving the American manufacturer of the flying disc.

He found that Mr Lincoln Laidlaw, the managing director of Lincoln Industries and a former president of the Manufacturers’ Federation, had bought a frisbee mould in a deal about which he (Mr Laidlaw) knew that the American company making the disc, Wham-0 Manufacturing, of California, knew nothing.

His Honour ruled that Lincoln Industries was in breach of copyright and granted an injunction against the company preventing it or its agents from manufacturing, selling, or distributing “flying discs.”

He also ordered the destruction of all frisbees in the company’s possession, all promotional and instruc : tional material relating to them, and any sketches, moulds, patterns, tooling, and other items used solely for their production. He ordered an inquiry to

determine damages owing to Wham-0 Manufacturing.!

The orders were made in a 65-page written decision concluded eight'months after a hearing of an action brought by Wham-0, Manufacturing, Toltoys Proprietary, Ltd, of Australia, and Toltoys (New Zealand), Ltd.

His Honour said that Mr Laidlaw was acquainted with a Mr Tolmer, of Toltoys Proprietary, which had been given the Australian rights to the frisbee in 1965. By then, another manufacturer had begun to make the disc under the name, Cyclops, and Toltoys Proprietary had eventually bought the other company's mould.

The question of Lincoln Industries' buying the mould from Toltoys Proprietary had been raised “and Laidlaw was certainly interested.”'

He (his Honour) was “gravely concerned about the creditworthiness of both Tolmer and Laidlaw” in relation to the eventual deal. . His Honour said, “In the evidence of both of them there are instances of evasiveness. I am satisfied that both were perfectly aware that what was really in-

tended between them was that Lincoln should have the same rights to manufacture and promote the Wham-0 type of flying saucer in New Zealand as Toltoys had in Australia.

“Both were fully aware that Wham-0 knew nothing of the deal. Neither was prepared to have hiS' company pay royalties to WhamO."

His Honour said Mr Laidlaw and Mr Tolmer believed that although Wham-0 Manufacturing knew nothing of the deal, the American company would be amply compensated by the removal of Cyclops frisbees ' from the. market.

Toltoys Proprietary had not reported the deal with Lincoln Industries to the American, firm until 1970 when “friendly -relations between Toltoys and Lincoln had deteriorated' very considerably.” . *, ■ The' agreement reached between. Toltoys Proprietary and Lincoln : Industries in mid-1966 had .-been “a piece of deception which, it was appreciated, was basically to the detriment of Wham-0 and which, it-i was., hoped, would escape serious notice.” For that reason Toltoys Proprietary and Toltoys New Zealand could have no claim against Lincoln * Industries and.they were excluded from the judgment awarded to the first . plaintiff, Wham-0 Manufacturing.