Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2016] FCAFC 22

FEDERAL COURT OF AUSTRALIA

Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2016] FCAFC 22 Appeal from: Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2013] FCA 986

File number: NSD 2154 of 2013

Judge: NICHOLAS, YATES AND WIGNEY JJ

Date of judgment: 4 March 2016

Catchwords: TRADE MARKS – infringement – whether primary judge erred in dismissing claims for trade mark infringement – whether evidence permitted finding that trade marks infringed – test of substantial identicality – need for "side by side" comparison – whether primary judge erred in holding that test incapable of application due to lack of direct evidence – trade mark use – whether trade mark used so as to indicate a connection in course of trade – whether trade mark use occurs if person applying trade mark without authority of registered owner intends to indicate connection between registered goods and the registered owner – whether use occurred in course of trade – whether infringing use INTELLECTUAL PROPERTY – common design – common design to engage in conduct that constitutes infringement of intellectual property rights – where participants acting in concert – whether necessary to establish intention to infringe – whether sufficient that participants acted in concert to engage in conduct that amounts to infringement – injunctive relief – where injunctive relief granted against individual respondent –where corporate respondent alter ego of individual respondent – whether injunctive relief should also be granted against corporate respondent behind which individual respondent stands – where risk that corporate respondent will act as a mere cloak behind which individual respondent will continue to infringe