Redbubble Ltd v Hells Angels Motorcycle Corporation (Australia) Pty Limited [2024] FCAFC 15

Federal Court of Australia

Redbubble Ltd v Hells Angels Motorcycle Corporation (Australia) Pty Limited [2024] FCAFC 15 Appeal from: Hells Angels Motorcycle Corporation (Australia) Pty Limited v Redbubble Limited (No 4) [2022] FCA 190 Hells Angels Motorcycle Corporation (Australia) Pty Limited v Redbubble Ltd (No 5) [2022] FCA 837

File number: QUD 282 of 2022

Judgment of: PERRAM, NICHOLAS, BURLEY, ROFE AND DOWNES JJ

Date of judgment: 23 February 2024

Catchwords: CONTRACTS – construction – scope of releases in settlement agreement – prima facie canon of construction –whether releases apply to proceeding TRADE MARKS – infringement – trap viewing – extra-territorial application of s 120(1) of the Trade Marks Act 1995 (Cth) – whether images were available to consumers in the ordinary course of trade – where the Appellant permitted images to be uploaded to and displayed on its website – where such images were displayed as part of a search tool TRADE MARKS – award and quantification of nominal damages for trade mark infringement – de minimis, trifling or technical infringements – applicability of de minimis non curat lex principle of statutory construction TRADE MARKS – award and quantification of additional damages under s 126(2) of the Act – relevance of quantum of nominal damages already awarded – deterrent effects of additional damages – consideration of Appellant's content moderation procedures TRADE MARKS – availability of injunctive relief – prima facie entitlement to final injunctions under s 126(1) of the Act TRADE MARKS – formulation of injunctions – where injunction restrained use of marks otherwise than as badges of origin – where practical effect of general injunction would require the Appellant to cease trading