ral a our up Earkdale Custom Built Furniture Sry Bed v Bux Pry Ltd (1392) 42 ALR 1 Star Industrial Co Limited v Yao Kwee Ker £1975] FSR 255 Australiar Coarse Grain Pool Prey Limited v Parlev Marketing Board of Queensland (1982) 46 ALR 2928 American Cvanamid Company vo Erhiecon Limited £1975] Ac P96 Beecham Groun Dimited v Bristol Laborataries Pry Limited (1968) 118 CLR 618 World Series Cricven Phy timited vy Parish (1977) 15 ALR James Watt Cansrructions Ftv Limited v Circie-EO Pte Limited £19703 3 NSWR 481 9 L971) L ATPR 40-041 Brock & Crs vy Terrace Times Pty Limised 2; 40 ALP a7 Starcross Pty Gimi T. dor Pow Limited 11987) 39 ALR 644 OMMIINTCATTON CREDIT ENTOM LIMITED v NATTONAL NESTMINSTEP FINANCE AMSTPAaLTaA LIMTTED IN THE FEDEPSL COUPT OF ANSTPALTA NEW SOUTH WALES DISTRICT P EGI STRY No. NSW G.314 of 1 Le) [ha tu GENERAL DIVISION JUDGE MAKING ORDEP DATE OF _OPDER WHERE MADE THE COURT OPDEPRS THAT wz ~~ were rw In the macter of the Trade Practices Act 1974 (Cth) BETWEEN : COMMUNTCATION CPEDIT UNION LIMITED Applicant aNd NATIONAL WESTMINSTEP FINANCE SUSTPALTA LIMETED Pasnanient RDER DAVIES. 7 : 17 Qetober 1583 : Svdner 1 The applicanion for an interlocutory tatunecisan be diemissed. 2 Leave be reserved to anoliv For am order as to cosrs and for directions. IN_THE FEDERAL COUPT OF AUSTRALTA ) ) NEW SOUTH WALES DISTRICT REGTSTRY ) Mo. NSW G.314 of 1383 ) ) GENERAL DIVISTON COMMINICATION CPEDTT UNION LIMITED Applicant MATIONAL WESTMINSTEP FINANCE AUSTRALIA LIMITED Resvondent PEASONS FOR JINDGMENT" ' 17 October 1983 DAVIES 7 In these proceedinas., Na, NSW 31d of LOSS. the anplican- brings a claim against the respondern an two bases The Firen 1s »52 of the Trade Practices Act 1974 (Cth) which reads : '82.(1) A corporation shall not, un trade or commerce, engage in conduct that 15 m2 deceptive or is likely to mislead or de Au (2) Mothzneo ir the succeeding provisions of this Division shall be taken as limiting bv implication the generality of sub-section (1:1." With respect to this provision, Mason J said in Parkdale Custom Burlt Furniture Ptv Limited v Puxu Ptv Limited, (1982) 42 ALR 1 at 9-10 : "Section 52(1) 1s expressed in terms of broad generalities which ars explicitlv preserved bv 5s 5202). The general words of s 52(1) should be widely ainterpreted without being read down bv reference to the heading of Pt V 'CONSUMER PROTECTION' or to the more specific succeeding sections (see Hornsbv Building Information Centre Pty Led v Svdnev Building Information Cantre Ltd . (1978) 140 CLR 216 at 225; 18 ALR 6393 at 544-5), Although s §2(1) 12 antended to nrotect members of the public in their capac1ty as consumers of qoods and services, competitors mav seek an tniunction to restrain breaches (s 80(1l)(c); R ov Federal Court of Australia: Ex parte Pilkington ACT (Operations) Pty Ltd (1979) 23 ALR 63; 42 CLR 113}. The remedy to prevent decenotisn of the public often has the incidental effect of pectecting a competing trader's qocdwill which amould be also iniured by that decepticn. tw oO Nevertneless, 1 15 important to recall that 5s S2(L) ais 'not concerned, as such, with anv unfairness of competition aun trade as between tw traders' : Hornsbv (140 CLR ati 226: 18 ALP at 446) : cf s 5 of the United States Federal Trade Commission Act 1914. It is not directed exclusively or even' primarily to situations of Passing off; 1t axtends to anv conduct that 15 likely to mislead or deceive as, for example, "he making of neqligent statements and false representations as to the gqualitv of goods. It 13 not enough that conduct damaces a rival trader: 1t must mislead or deceive or be likely to mislead or deceive members of the public in their capacity as consumers. Yornsby and McNallram's Wines Phy Ltd vy McDonald's Svstem of Australia Ptw Ltd 11980) 23 ALR 394, show the importance of examining why the alleqaed misconception arose. Thus in Hernsby it was assumed that the name 'Hornsby Building Information Centre' led persons to believe that the Hornsby Cantre was a branch of, or otherwise associated with, the Svdnev Centre. However, the use of that names did nat contravene 5 52/1). The misconception occurred Since the very descriptive name adopted bv the Svdnev Buiiding Information Centre was t ',,, equally applicable to any business of a like kind, 1ts very descriptiveness ensures that it 1s 3. not distinctive of anv particular business and hence ats application to other like businesses will not ordinarily mislead the public' (CLR at 229; ALR at 648). It was important that a trader adopting descriptive words did not therehv secure an unfair monovoly in those words." The Chief Justice warned. at page 6, "...5 do not suagest that the words of 5s 52 should be given 'some unnaturally confined meaning' (to use the words of Stephen Jin Hornsby Building Information Centre Pty Ltd v Svdnev Building Information Centre Ltd (ALR at 644; CLR at 225)). or that they should be construed to conform with the common law (see World Cricket v Parish (1577) 16 ALR 181 at 198-9), but simply that tnevy should be given the1rr plain and natural meaning, and snould not be understood in some loose or expanded sense." The other basis upon which the applicant brings 1ts claim 1s the common law tort of "passing off". As Lord Dislock said Star Industrial Company Limited v Yar Kwee Kor £15976] TSR 256 269 : "R passing off action 15 a cemedv for the invasion of a right of property mot in the mark, name or get-up improperly used, but in the business or goodwill likelv Lis) be aniuread by the Misrepresentation made bv passing off one person s qaoods as the goods of another." In Frank Peddawav & Anor v George Panham & Anor £13961] 159, Lord Herschell said, at 209-210 ;: "The principle which 15 applicable to this class of cases was, in mv judgment, well laird down by Lord Kingséown in Leather Cloth Co v American Leather Cloth Co, 11 HLC 538. Tt nad been previcusly enunciated in much the same way bv Lord Lanadale in the case of Croft v Dav, 7 Beav 4. Lord Kinasdown's words were as follows t 'The fundamental rule is, that one man has no riaght to put off his aoods for sale as the qoods of a rival trader, and he cannot, therefore (in the 4, lanquage of Lord Lanadale. in the case of Perry v Truefitt, 6 Beay 66). be allowed ta use names, marks, Latters. or other indicia. by which he mav induce purchasers to believe that the qoods which he ais selling are the manufacture of another person'. It is. in my opinion, this fundamental rule which governs all cases, whatever be the particular mode adopted by any man for putting off his goods as those of a rival trader. whether it is done bv the use of a mark which has become his trade mark, or in anv other wav. an The name of a person, or words forming part of the common stock of language, mav become so far associated with the qocds of a nrarticular maker that 1¢ ais capable of proof that the use of them by themselves without explanation or qualification by another manufacturer would deceive a purchaser into the belief that he was getting the coods of A when he was really getting the goods of B. Ina case of this description the mere proof bv the Plaintiff that the defendant was using a name, ward, or device which he had adopted to distinauish his goods would not entitle him to anv relief. He could onlv obtain it bv proving further that the defendant was using it under such Circumstances or in such manner as to put off his qoods as the qoods of the plainriff. Tf he could succeed ain eroving this TI rhink he would. on well-sstablished principles. be entitled ta an tntunction. " And, as Barton, ACJ, Isaacs. Fowers and Rich 77, said in Collith vy Borsal 2zno Guzseppe E Fratslio Seciera Anonima (1912) 16 244, at 351 : ' The "Tt is not necessary rhat thea wnersons purchasing goods should know of the manufacturer bv name, and have in mind when thev ourchase the qaeods that they are made bv a particular individual. Te seems to me,' savs Lord Herschell,. "that one man Mav quite well pass off his qwoods as the goods of another if he passes them off to paonle who will accept them as the manufacture of another. thouch thev donot know that other by name at all: Birmingham Vinegar Brewery Co Ltd v Powell £19971 AC 710 at ».715." application with which I am now dealing ius an 5. application for an interlocutory injunction restraining the respondent pending the trial of the action from using the name or mark "Phone-A-Loan" in the course of its bhusiness. I was referred to the usual authorities governing the rant of an interlocutory injunction, Mr R.A. Conti, OC, senior counsel for the applicant, submitted that following upon the dacision of the ta) [ay i Chief Justice. Sir Harrv Gibbs, in Australian Coarse Crain P Ptv Laimzted v Barlev Marketing Board of Queensland. (1982) 46 ALP 398, I should follow the principles laid down bv the House of Lords in American Cvanamid Company v Ethicon Limited £1975] Ac nat "Ss hm D. Voss. OC, senior counsel fo he respondent. submitted that I am bound bv what the High Court of Australia had to savy ain Beecham Group Limited v Bristol Laboranoriss Pry Limited (1968) 1128 CLR 618. It has not been the practice of this Court to follow slavishlv the dicta expressed in either of these two cases. As Sir Nigel Bowen, CJ, said in World Series Cricket Pty Limined wv Parish. (1977) 16 ALR 181, at 186 : stablish a prima fac , OF A SerLloOUS quest. an Cvanamid sense. 'sh: "Whether 1t 15 necessarv to 2 case in the Seecham sense tro be tried in the Americ WLLll be reaaurred will varv from case to case. ac T bor 7T3 ob An interlocutory injunction, if aranted. 15 granted as much for + o the benefit of the Court as itis for the benefit of apolicant. The abilitv to grant interlocutory relief enables che Court to ensure that a case, which otherwise should be heard urgently, can be heard at an appropriate time in the future DO. without disruption of Court lists and at a time when the parties have had an adequate opportunity to orepare for trial. In coming fo a decision as to the aqrant of an interlocutorv injunction, the Court must consider all the circumstances of the particular case before 1t, including the nature and strength of the anplicant's case as disclosed bv the affidavit material before the Court. As the Chief Justice said in World Series Cricket Pty Limited v Parish, cited above, the strength required of an applicant's case Before an interlocutory injunction is granted varies from case to case, The strenath of thse applicant's case is taken into consideration with other factors such as the time which must expire before trial and the detriment which will occur to each of the parties should an interlocutory ianjzunction he oranted or not aranted. In assessing the strength of an anolicant a ie 1b this puroose, the Court approa s the matter on ~he foonring rhat an application for an unteriocutorv initunction us not in anv sense a trial or mini-trial of the action. In Beecham's case, c2ted above, Kitto. Taylor. Menzies and Owen JJ said, at 622-622. "Thus where the defendant goes into evidence on the interlocutory application the Court does not undertake a preliminary trial, and give or withhold interlocutory relief upon a forecast as to the ultimate result of the case. James LJ n he said. in Plimpton v Seiller (1876) 4 ChD 2 at p.289, 1n relation to a patent action wh there was no outstanding issue as to validity : a L explained the qeneral attitude of the Court whe [6 er '...the Court, mot forming an opinion very stronaiyv either one way or the other whether there is an infringement or not, but considering 1t as a fairly coen question to be determined at the hearing, and not to he prejudiced by anv observation in the first instance, reserves the question of anfringement as one Which will have ta be 7. tried at the hearing, and which it will then have to consider'." Samilarly, in the American Cvanamid case, cited above. Lord Diplock said, at 409 : "The Court is not justified in embarking upon anvthing resembling a trial of the action upon conflicting affidavits in order to e6valuate the strenath of either vcarty's case." In the present case, the applicant is a credit union with 40,000 members, mainly resident in Svdnev, particularly in the suburbs of Parramatta and Campbelifield, and also in the Newcastle and Gosford areas. The applicant accents funds from members. Under its constituent document and the rules relating to creadzrt unions, it mav lend funds only to members -vho are within its "bond" or turisdiction. The applicant seeks to extend its membership to as many people as possible within its bond and 1f aperson desires to borrow monev from the applicant, thar person, 1f within the applicant's bond, mav be made a member bv acaguiring five $2 shares in the applicant. Tn March 1978, the applicant introduced oublicly a means hv which members and potential members could apply for loans fren the applicant by telephone. It qave to that facilitv the name "Phone-A-Loan". Paragraoh 9 of an affidavit bv Me %2T.F. Chant sworn 10 October 19983, states : " "PHONE-A-LOAN' is a service which enables members or potential members. at their convenience within normal working hours. to tealepnone at a certain Relephone number. which is separate and distinct from the Appiicant's normal business telephone numbers, to ledge an application for a lean. When 8. such a call is made ut 1s answered bv specially trained personnel of the Applicant who take down verbatim details of the application on 2 prescribed form. The Applicant's emplovee goes Ehrough the prescribed form with the caller asking for the relevant information and recording the information as given. Once all the information has been given and the call has been terminated. the application 15 processed bv the Applicant in the normal manner. Once the application has been avoproved. the applicant is notified and when he or she comes to collect the funds, he or she signs the application form." The applicant''s "Phone-A~Loan" facility was advertised by posters distributed to relevant work places, by premotional material sent to existing members. by promotional material sent by marl or mail drop ta avery householder in the City of Parramatta, by promotional materizal distributed to work places in which there were members or potential members and by promotional material in the form of qive-away pocket and desk calendars which were distributed to members of potential members. During the a 1) fn] tu past thr months. the applicant distributed 200,900 leaflets ray 1D rt tr ox drops and mail or pay envelone insertio i) Wi wav of 'BD ¥ wD "Ss promoting the "Phone-A-Loan" service, The "Phone-A-Loan" facilitv has bean successful 'for the applicant. Approximatelv 50% of all loan applications received by the applicant since 1978 have been made throuch the "Phone-A-Loan" service, and the number of applications has increased. a. The applicant has applied to register "Phone-A-Loan" as a trade mark under the Trade Marks Act 1955 (Cth), but no decision has yet been made on that application. In 1982, the respondent, which 1s a well-known finance company, was advised by its marketing consultants to set up "what is tantamount to a 'phone-a-loan' marketing operation". The consultants referred to this operation as an innovative marketing concept". The marketing consultants said that "the 'phone-a-loan' marketing concept will be seen as anew and enlightened form of lending facility" and that the introduction of the concept would provide a "personal loan facilitv and level of service that would be unmatched by any other finance company". The recommendation of the marketing consultants did not suggest that "phone-a-loan" was a name or mark used by the applicant and the evidence before the Court indicates that the officers of the respondent were not aware of that fact. \ Since September 1983, the respondent has advertised a facility which 1t has described as "NatWest Phone-A-Loan". The advertising programme commenced on 18 September 1983 in print media and the radio. Advertising associated costs to date have amounted to $159,462 and the respondent is committed to further expenditure in respect of print media and radio advertising of $313,577 by the end of December 1983. The respondent received 1011 telephone calls to 30 September 1983 following the advertising of its facility. 10. In a letter dated 20 September 1983, the respondent was advised of the claim which the applicant made to the name or mark "Phone-A-Loan". By letter dated 30 Sentember 1983, the respondent declined to undertake not to use that name or mark. The application for relief was lodged with the Court on 7 October 1983, Tt should be noted first that the use bv the resnondent of the tarm "Phone-A-Loan" is not, apart from the association of that term with the applicant, misleading or deceptive. Although the term is not directlv descriptive, 1t conveys well the concept which the respondent introduced, namelv, a facility by which a lean mav be initiated by a telephone call. Thus, anart from the question of association of the words with the applicant, their use by the respondent 15 anpropriate. The case 1s put by the applicant upon the Footing that the words "Phone-A-Loan" have. since 1978, acquired a distinctive character and a secondarv meaning whereby thev are distinctively descriptive of the applicant's talephone facility, Mr Canti referred to the remarks of Hope J (as he then was) in James Watt Constructions Ptv Lamited v Cirele-E Pty Limiced £1970] 3 NSWP 481 at 499-490, where his Honour said :- o "As I have found above, I think that the words 'Barrier Beam' have come to mean the plaantiff's qoods, but this finding in itself does not dispose of the matter. It must also be established by the Plaintiff that the words do not mean electronic Machine quards by whomsoever made. ...7I think that the plaintiff in the present case has established that to persons dealing in electronic Franki 17,441-2 This Brock a In Weitmann v Katies Limited & Ors (1977) 1 ATPR 49- PR ll. machine guards the words 'Barrier Beam' have not only acquired the secondary meaning (in the positive sense) of electronic machine auards manufactured and sold by the plaintiff. but have ceased to be simply descriptive of a particular tvpe of machine guard." "Whilst one should not be too readv ta apply to a case such as this, which appears at first adlance to be ain the nature of a passing off action, the law relevant to such an action, I have come to the conclusion that ina qeneral sense much of that law 21s particularlv relevant with regard ta determining whether certain conduct is misleading beeen Whether conduct is deceptive in the subiect case must be examined in the light of what the allewved deceptive words mean to the relevant purchaser when used on the sleeve of the ladies T-shirts as thev ars to be sold. This involves two questions, fiurst., who is to be considered as the ralevant purchaser and second, what will the words mean to that purchaser? This seems to lead to two of the questions which arise ina vassing off action, first, what is the appropriate class of purchasers to be considered and secondly, have the words 'Saint Germain' acquired what 15 commoniv called a secondary meaning, namely do they indicate to the appropriate class of vurchasers that the cqoods have come from a particular source. whether the name of that source is known or not?" proach was adopted and applied by Bowen CJ and Franki &-Ors v Terrace Times Ptv Limited, (1982) 40 ALR 97 at o4l, J, who was dealing with a 5.52 application, saia at In Starcross Pty Limited v Liqguidchlor Ptv Limited. (1932) 33 ALR 644, Franki J said, at 646-7 : "The use of a word such as 'qold' will almost 12. certainlv be deceptive or misleading 1f used in relation to a substance which is not gold. This 1s because a sufficient section of the relevant community will attribute a meanind to the word 'aold' based on familiarity with that word over the vears. Tf it 1s alleqed that a word. as for example, 'Saint Germain' in relation to T-shirts, is deceptive or misleading, those words must have acquired a secondary meaning, namelv that thev indicate to a sufficient section of the relevant community that thea goods to which thev are applied have come from a particular source. whether the name of the source is known or unknown. I c1te in that reaard my own judaoment in Weitmann v Katies Ltd £19777 ATPR 40,041 at 17.442. In the same Wav, in mv opinion, uf it is alleqed that 1t is deceptive or misleading conduct ta Manufacture and sell an article made according to a particular shane or pattern, it must he shown that that shape or pattern has acquired a secondarv meaning in the sense that the shape or pattern indicates toa sufficient section of the relevant community that the articles made according to that shape or pattern come froma Particular source, whether the name of that source 25 known or not. ... The necessity for what I have called a reputation, or a secondary meaning, being attached to words or, ain this case, to a particular shape or confiduration of articles bafore relief can, except in most unusual case, be obtained under 5 52, is borne out by the decision of the Full Court of this court in Snoid v Hardley £1381] ATPR 40,247; 38 ALR 383. Tn that case Mr Justice Ellicott had granted certain intunctions, one of which extended bevond the citreas of Svdnev and Canberra, ana at 43.236 (ALR at 392) of the to9ant tudament of the court the following sassace aopears : 'But it was submitted that having reqard no nis Honour's finding that the cj arplicants had not established a reputation outside those citzes, the applicants were not entitled to intunctitons restraining any conduct outside those cities. We think there is substance in this submission. Unless the reputation of the applicants' band is shown to extend bevond the Sydney and Canberra areas. 1t 15 mot possible to Say that anv member of the public osutside those areas would be misled or deceived or would bea likely to be misled or deceived'." 13. The evidence with respect to this secondarv meaning or reputation in the present case consists entivrelv of the evidence as to the advertising conducted bv the applicant and of the fact that the applicant has used the expression "Phone-A-Loan" in connection with its business. There is mo avidence from anv person connected with the industry or from anv member of the public that the name "Phone-A-Loan" has acquired a reputation or meaning whereby the name distinguishes financial services froma Particular source. It is therefore necessary to sea what was advertised. In the first instance, the name "Phone-A-Loan" has from time to time been used in some advertisements oF the acplicant on its own as if, it were a name of a business, but on other occasions it has been used as the name of the telenhone facility. There are advertisements which simnlv say "Want a loan? Just pick up the phone Phone-A-Loan 62335000". Other advertisements >) have the name and logo of the applicant orominantiv disnlaved and state in coniunction with a depiction of aA npdérson maxing a2 telephone call, "Use the unique Phone-A-Loan to apoly for a loan I do not think 1 is possible to draw from the advertising material the conclusion that the name '"Phone-A-Loan" has become recognised as the mame of a particular business or of ut uw ul tT proprietor. All persons who borrow monev from the applicant mu become members of the applicant. In doing so, all borrowers must 14. be familiar with the fact that thev are dealing with and are members of the Communication Credit Union Lamited and that that company Carries on business under its own name. I do not think it possible to draw the conclusion that the name "Phone-A-Loan" has acquired any reputation outside the telephone facilitv which the applicant provides. Indeed. this conclusion i consistent with Mr Chant's in affidavit. In that affidavit, Mr Chant devosed : "12. Since introducing PHONE-A-LOAN, the Applicant has underraken extensive promotional activities to make its members and potential members aware of the existence of such a facility and to promore use of it. wan 13. ... has is because the PHONE~-A-LOAN facility has alwavs been perceived by the Applicant ta he what 25 known in the marketing 'industry as a 'unique selling proposition'. ... rey 17. Currently, the .Applicant employs six people specifically to man the PHONE-A-LOAN facilitv. These sentences extracted from Mr Chart''s affidavit emohas:se that the applicant introduced a "Phone-A-Loan" facility, tha fa re] al to sav, a means of doing business and a service of which =] fi) A U0 w % ul and potential borrowers could avail themselves. The next point to nete is that, although the words aren fwi t directlv descriptive ef the teleohone Facirlicy which + a i) applicant provides, they navertheless convey by idea precisel: the facility or service which 15 provided. The fact that a name 15. is descriptive in this sense does not necessarilv novreclude it from obtainina a reputation or secondarv meaning in the sanse IT have described. but plainly it is more difficult to do so than words which in no way describe the qoods or services with respect to which they are applied. Next, 16 15 to be noted that the evidence before the Court iD szuaqgests that the applicant 1s not the only organisation which a Pp ul y i} m a wh fa ib ba oa 1D fu uses the expression ""Phone-A-Loan". Ther letter from the General Manager of the applicant to the General Manager of the State Building Socretv Limited, dated ll February 1983. which states, "We have licensed a number of other credit unions to use this trade mark ...", and another letter, darad 22 "The arrangements we have 2 2 other Credit mions are quite unique zo that they have aiso licenced us ft s r slogans originated and licenced bv chem. thes include 'Telecheque"" - ai teleph a service, and others. The reciprocal arrangement, therefore, sroavides chat commen fee 15 exchanged annually, of the same value." From these letters I draw the conclusicn chat the aevlictant has authorised several other cradit unions to use kne words "Phone-A-Loan" and that two other credit unions have entered irra reciprocal licence agreements with the applicant. Morsover, the applicant has offered a licence in respect of "Phone-A-Loan" ta tne State Burldinag Society hamited, a society which I assume t operate qenerally throughout the areas in which the applican fe] ct 16. carries on business. The licensed use of a reqistared trade mark is not the circumstance which I have to consider. The question 15 whether the use by other credit unions of the name "Phone-A-Loan" would be likelv to lassen the acquisition by the words ""Phone-A-Loan" of the reputation or secondary meaning I have mentioned. I think it would be likely to do so for members of the public who knew of the us@ of the name with respect to several different credit unions would be more likely fo conclude that the name was a general description of a type of facility cather than aname attached specificallv to the apolirecant's facilitv. However, I could not give anv great weimht to tnis point. The evidence before me does not show what use. 1f anv, other credit unions have made of the name or whera the credit unzons have bean located. From the evidence before me, it does nor seem 4o me to be possible to draw the conciusion that the name "Phone-A-Loan" is distinctive of the applicant's facility to such an extent tnat t Re ul use bv anv other person within the area inwhich the applicant carries on busingss would be misleading or deceptive ar ye] would amount to passing off. The anplicant was shown onivy that it has used the name "Phone-A-Loan" extensiveiv. The eavidence does not show that that name has acquired 'the reputation or secondarv meaning contended for. The likelzthood that borrowers would be misled or dscaived by the respondent's use of the name "Phone-A-Loan" 215 ain anv 17. event lessened by the fact that its advertisements describe uts facilitv as "NatWest Phone a Loan" and feature the name of the respondent which. as I have said, is a well-known finance company. In addition. the advertisements emphasise that the name "NatWest Phone-A-Loan" is referrable to a facilitv or services. a means of doing business. The advertisements emohasise the ease of making an application for a loan bv tealaphone. The advertisements are different in get-up and in thetr means of distribution from those of the applicant. Te 1s unlikely that any member of the anplicant would he misiad by the advertisements ainto thinking that the "NatWest Phone-A-Loan" facilitv was the facility provided by the applicant or that there was anv association between the two. Members of the applicant are presumably familiar with the activities of the applicant and with its function as a cradit unian and should recognise the distinction between the applicant on the one hand and the respondent on the other. Potential customers of the applicant, versons whe have read w t licant's advertising material for 4 mumber of vears. may 1e@ 2a bra] ira] m ' perhaps be confused. But would thev be misied or deceived by xe) What the respondent has done? Would there De passtma off to tham of the one facility for the other? I do mot think that this has been shown by the material presently before the Court. I turn now to other circumstances of the case. The aeant is. of an inzunction could not preclude the respondent from providing a telephone facility and therefore competing with the applicant for custom in the areas in which the applicant trades. The applicant has no monopoly with respect to the means of doing Business. Nor is such competition whether under the name of "NatWest Phone-A-Loan" or under some other name likelv to ba aqreativ disruptive of the applicant's business. The anplicant 15 mot likely to lose members because the respondent advertises a "NatWest Phone-A-Loan" facilitv. The anplicant will continue to attract business from those versons within its bhoend who wish to desl with a cred2zt union and who prefer the ease of a telenhone facility. Nor will the use bv the respondent of the words "Phone-A-Loan" destroy the value of the name. Increased advertising is likely to increase the reputation of those words so that, if the applicant 1s ultimately successful in these proceedings, the value of the words to it will have been enhanced rather than diminished. On the other hand, 1f an iniunction 215 now issued, the advertising campaign upon which the respondent has commenced, on which it has already spent a large sum and in respect of which it 15 committed to further axpenditure, will be severely interrupted and, because name changes cannot readilv he made, the respondent's adoption of a new name to describe its telephones facility may preclude it from using the name "Phone-A-~Loan" which ev p i 0D i) OY 1D me ss yw Hn u 'S 1g. 1t claims it 15 entitled to use. Having regard to the matters I have mentioned, I think this 1s not an appropriate case in which to grant an interlocutory iuntunction. In particular, I thank that anv damate which the applicant may suffer between the present time and trial can he adequately compensated by damages which the respondent wiil be able to pav. The material before the Court dces rot seam to me to show any such balance of convenience or likelthood of success as would qustify the qeant of an interlocutory injunction. I should make it plain that, in these reasons, I am dealing only with an interlocutory application and that I am nor intending to exvress anv view as to the likelihood of success at the trial, The trial when 1 takes place will take place on evidence other than that which 1s presently before me. I have expressed my views at some lenath because the anplication for an anterlocutory injunction was fullv arqued befor2 me and 10 was appropriate therefore that I should deal with the matter with some care. However, I have expressed my views only in thea context that this present application 15 not a oreliaminary trial of the action. In particular, ft have not sought to censider or to express & view upon the submissions by Mr Vass that the words "Phone-A-Loan" are too dascriptive to acquire Ss secondar- meanina. T have assumed that they ar2 capable of acquiring the appropriate secondarv meaning oar reputation but I have concluded that the evidence presently before me does not show that that 20, meaning or reputation has in fact heen Acquired, The application for an anterlocutery aniunction will therefore be dismissed, wee