CATCHWORODS INTERLOCUTORY INJUNCTION - applicant alleges that the respondent's conduct in using the words "Pool Professionals" contained misrepresentations within the meaning of s.52 of the Trade Practices Act - words used by the respondent to emphasise pool professionalism, not to trade under - no evidence of actual confusion - evidence inadequate to support a finding that there was a triable issue - respondent engaged in a marketing campaign - balance of convenience - injunction refused. Trade Practices Act 1974, s. 52 JENNIFER FREEMAN and BERNARD KINGSLEY carrying on business under the registered business name "THE POOL PROFESSIONALS" v. ABEL LEMON & CO PLY LTD QLD G12 OF 1983 FITZGERALD J. ' BRISBANE 14 DECEMBER 1983 IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G121 of 1983 GENBRAL DIVISTON ) BETWEEN : JENNIFER FREEMAN and BERNARD KINGSLEY carrying on business under the registered business name "THE POOL PROFESSIONALS" of 19 Water Street, Southport in the State of Queensland Applicants AND: ABEL LEMON & COQ PYY LTD Respondent FITZGERALD J. 16 DECEMBER 1983 REASONS FOR JUDGMENT On Wednesday this week, 14 December 1983, I dismissed an ro application for interlocutory injunctions restraining the respondent "from using in the conduct of business in Queensland the name of the Applicant's business 'The Pool Professionals'" and from "engaging in any conduct which is likely to mislead the public into believing that the Respondent's business conducted in the State of Queensland is the business of the Applicant". Directions were given and dates for trial in February 1984 have 'been fixed. The application for an interlocutory injunction was refused at the end of the hearing and I then indicated that I would provide reasons as soon as possible, which I now do. The applicants' business provides services deposed to in the following terms: "Swimming pool services; Swimming pool maintenance; Supply of chemicals and equipment for the use in swimming pools; Painting and plumbing associated with swimming pools." The business trades under the name "The Pool Professionals" and that name has been registered as a business name under' the Business Names Act 1962 (Queensland) since January 1981. The business is operated from a residence at 19 Water Street, Southport on the Gold Coast and the trading name of the business appears in the white pages of the Gold Coast telephone directory. There are numerous business competitors of the applicants on the Gold Coast. There is no evidence concerning the size or reputation of the applicants' business or its methods of operation, including whether or not it advertises, or with respect to the nature and extent and location of its custom. The respondent trades throughout Australia. Its business includes the manufacture of chemicals for use in swimming pools and the wholesale of swimming pool chemicals, both of those which it manufactures and others which it purchases, and the wholesale of pool accessories. The respondent has carried on such business for many years. It is not involved in retail trading. There are numerous retail stores for pool chemicals and accessories in the Gold Coast area. The respondent wholesales to a number of such stores, none of which 1s closer than 3 kms from the applicants' premises at 19 Water Street, Southport. Neither the respondent nor any of the retail distributors of its products trade under aname consisting of or including the words "Pool Professionals", nor do those words form part of the brand name of any of the respondent's products. However, the respondent emphasises "pool professionalism" to promote its products and the services of the retail distributors of its products. In an industry magazine published in September 1983 distributed to retailers of goods and services such as those provided by the applicant, the respondent appealed to their professionalism in order to influence them to purchase from it, referring to them throughout the extensive advertisement as "Pool Professionals" or "pool professionals". Further, the respondent is currently engaged in a television advertising campaign which commenced, s0 far as is presently material, on Brisbane television channel BIQ 7 on 9 October 1983 and is scheduled to continue on that channel until 5 February 1984. In the advertisement a customer is shown entering premises where the respondent's products are on sale. A logo consisting of a map of Australia with two capital P's superimposed on it and underneath it the words "Pool Professionals of Australia" is shown affixed to the outside of 'the premises. A voice describes the person consulted by the customer as your "local pool professional". Later in the advertisement, as the customer receives a leaflet from a salesman, a voice states "that your local pool pro puts you ahead". The logo is again shown at the end of the advertisement against a background of clear water 1n a swimming pool with the names of distributors of the respondent's products superimposed. The same logo appears on the outside of premises of retailers of the respondent's products. The respondent intends that it and the retail distributors of its products will continue to participate ina marketing campaign in newspapers involving the use of the logo after the completion of the television campaign in February 1984. The applicants became aware of the conduct of the respondent in November 1983 and commenced the present proceedings on 9 December 1983. By their Statement of Claim, the applicants seek an injunction and damages for alleged contravention of 5.52 of the Trade Practices Act 1974 and/or passing-off. In the Statement of Claim, the applicants allege that the conduct of the respondent is misleading, deceptive or likely to mislead or deceive within the meaning of 5.52 in that - (1) the respondent's statements mean or imply contrary to fact that the respondent's business... is the business carried on by the applicant; (ii) the respondent's statements mean or imply contrary to fact that the respondent is the licensed agent of the applicant; (iil) the respondent's statements mean or imply contrary to fact that the retail distributors of the respondent's products are employed by or are acting on behalf of the applicants. Precisely the same allegations and no others were made the foundation of the applicants' request for an interlocutory injunction. No evidence was adduced of any instance of actual confusion. Further, although the applicants' Statement of Claim asserts that they have sustained loss, including a reduced volume of sales and diminution in value of goodwill, no evidence of loss was adduced by the applicants. Nor was any suggestion made that there would be any difficulties in quantifying any loss in fact suffered by the applicants. On the other hand, there was uncontroverted evidence of loss to the respondent if its marketing campaign is interrupted, including costs associated with the conduct of the campaign. It 1s obvious that there might be difficulty in quantifying other elements of damage which might reasonably be anticipated to flow from an injunction such as was sought. The theoretical possibility of some confusion may he admitted and, indeed, such a possibility may be an inevitable consequence of the applicants' use of a name which mentions desirable attributes likely to be claimed by those in the trade. It by no means follows that the making of such a claim or the use of the words contained in the applicants' name by another constitutes a misrepresentation by the maker. #9 Certainly, in my opinion, the evidence was totally inadequate to support a finding that there was even a triable issue that the respondent's conduct contained any of the misrepresentations alleged by the applicant. Nor, as matters presently stand, is there sufficient basis for a finding that there is a triable issue concerning whether the respondent's conduct contains a representation that the applicants, although their business does not carry the logo, are connected with the association of traders referred to in the advertising and logo as the "Pool Professionals of Australia". In any event, the respondent did not make such an assertion. Although it does not much matter in view of the conclusion at which I have otherwise arrived, I am also of the clear opinion that the balance of convenience favours the refusal of rather than the grant of the injunctions sought. | certify that this and the J preceding pages are a true copy of the reasons for judgment herein of the Court Peek L£. Dertrorw Associate Dated /6 Reenter, 9PF