Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
E & J Gallo Winery v Lion Nathan Australia Pty Limited (No. 2) [2009] FCAFC 47
Trade Marks Act 1995 (Cth) s 126 E & J GALLO WINERY v LION NATHAN AUSTRALIA PTY LIMITED ACN 008 596 370; LION NATHAN AUSTRALIA PTY LIMITED ACN 008 596 370 v E & J GALLO WINERY
NSD 1085 of 2008
MOORE, EDMONDS AND GILMOUR JJ
15 APRIL 2009
SYDNEY IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSD 1085 of 2008
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: E & J GALLO WINERY
Appellant/Cross-Respondent
AND: LION NATHAN AUSTRALIA PTY LIMITED
ACN 008 596 370
Respondent/Cross-Appellant
JUDGES: MOORE, EDMONDS AND GILMOUR JJ
DATE OF ORDER: 15 APRIL 2009
WHERE MADE: SYDNEY
THE COURT ORDERS THAT:
1. The appeal be allowed in part. 2. Orders 1 and 2 of the orders of the primary judge of 27 June 2008 be set aside. 3. The stay against the operation of Order 3 of the orders of the primary judge of 27 June 2008 ('Order 3') be extended until: (a) 28 days from the date hereof; or (b) in the event that the appellant within that time files an application for special leave to appeal to the High Court of Australia, until determination of that application or any subsequent appeal if special leave is granted, whichever is the later; subject to the appellant's agreement not to seek pecuniary relief for infringement of Australian Trade Mark No. 787765 after 27 June 2008 (unless Order 3 is ultimately set aside by the High Court of Australia) and the appellant's undertaking to pursue any such application and subsequent appeal with all due expedition. 4. The matter be remitted to the primary judge for consideration of: (a) the appellant's application for damages or an account of wrongful profits pursuant to s 126 of the Trade Marks Act 1995 (Cth) (as claimed in the appellant's further amended application filed 22 February 2008 in the proceedings at first instance); and (b) the question of costs of the amended application. 5. The operation of Order 4 be stayed for: (a) 28 days from the date hereof; or (b) In the event that the appellant within that time files an application for special leave to appeal to the High Court of Australia, until determination of that application or any subsequent appeal if special leave is granted, whichever is the later; subject to the appellant's agreement not to seek pecuniary relief for infringement of Australian Trade Mark No. 787765 after 27 June 2008 (unless Order 3 is ultimately set aside by the High Court of Australia) and the appellant's undertaking to pursue any such application and subsequent appeal with all due expedition. 6. The appeal be otherwise dismissed. 7. The appellant pay 50% of the respondent's costs of the appeal. 8. The cross-appeal be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA
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