IP Bite: Federal Court orders $2.3 million penalty for counterfeit Aboriginal art

What you need to know

• The Federal Court has ordered that a pecuniary penalty of $2.3 million be paid for the sale of products falsely represented as being hand painted by Australian Aboriginal artists.

Birubi Art Pty Ltd manufactured and sold products which displayed Aboriginal art including boomerangs and didgeridoos. The items were represented as being hand painted by Australian Aboriginal artists. However, they were in fact made in Indonesia and were not hand painted by Australian Aboriginal persons. 

In October 2018, Birubi was found to have contravened sections 18 and 29 of the Australian Consumer Law by falsely representing to consumers that the products it sold were hand painted by Australian Aboriginal persons. Because Birubi is now in liquidation, the ACCC only pressed its claim for pecuniary penalties. While the ACCC and the Court acknowledged that the penalties may not be paid if awarded, a decision on this issue is still important because of the general deterrent effect it can have.

In June 2019, Justice Perry ordered that Birubi pay pecuniary penalties totalling $2.3 million. Justice Perry stated that the economic, social and cultural harms to Indigenous persons and communities resulting from the misrepresentation of art as made by Indigenous Australians, highlights the need to send a robust deterrent message. Justice Perry also discussed that given that the conduct had significant potential to mislead or deceive, the duration of the conduct (more than 2 years), the number of outlets across the country to which the products were supplied, and the number of products sold (over 50,000), it was clear that the objective seriousness of the conduct was considerable.

Authors: Annika Barrett, Senior Expertise Lawyer and Lisa Ritson, Partner.