5 hed we ek Ba Ruler ama Dent dae aeente ienlanie Lelet then ttl nll LeeAnn tates eae ak rand ~ ? i C CATCHWORDS TRADE PRACTICES - Misleading or deceptive conduct - Representation that goods have a particular standard or quality - Misleading conduct in relation to characteristics of goods - Fragrance advertised as "like" certain well known perfumes - Statements made that even an expert could not teli difference - Evidence to show a prima facie basis that aroma of fragrances was unlike that of the perfumes - Use of packaging describing the fragrances as "like" the perfumes - Application for interlocutory iuniunction. PRACTICE - Application for orders requiring respondents to disclose information regarding source of supply of fragrances and their packagind. Norwich Pharmacal Co v The Customs and Excise Commissioners £19741] A.C. 133 applied. Trade Practices Act 1974 ss.52, 53{a), 55. N.S.W. G 135 of 1985 BENTLEY FRAGRANCES PTV LIMIVED and CHARLES OF THE RITZ GROUP LIMITED v GDR CONSULTANTS PTY LIMITED and ALIMEAST PTY LIMITED Wilcox J. Svdnev 7 June 1985 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES' DISTRICT REGISTRY GENERAL DIVISION CORAM; WILCOX J. DATE: 7 JUNE 1985 PLACE: SYDNEY THE COURT ORDERS THAT: l. The respondents. each of them, BETWEEN AND: No. 135 of 1985 BENTLEY FRAGRANCES PTY EIMTTED First Applicant CHARLES OF THE RiTZ GROUP LIMITED Second Applicant GDR _ CONSULTANTS PTY LIMITED First Respondent ALIMEAST PTY LIMITED Second Respondent MINUTE OF ORDERS their servants and agents be restrained until further order from Mattel At ees hn ae ee oo ey ahd inca DR RT ALi Ws Skerries nat Kim et sie cilan el anneal lettre anes iin eenhe 6 engaging in conduct in trade and commerce that 15 misleading and deceptive or likely to mislead or deceive by: (a) (b) using or causing to be used the names "L'Air du Temps", "Oscar de la Renta" and "Oprum" or any of them in any brochure, literature, advertisement or writing or in any container or packaging used for or in connection with the manufacture. distribution or sale of any perfume, perfume concentrate, parfum de toilette or eau de toilette; or representing whether orally or in writing that the product manufactured, distributed or solid by the respondents or either of them 15 indistinqguishable in perfume or fragrance or has a close likeness in perfume or fraqrance to any perfume, perfume concentrate, parfum de toilette or eaux de toilette distributed in Australia by the first applicant under the name or under a name which includes the name "L'Air du Temps", "Oscar de la Renta" of "Opium" or any of them. me fy ee wa, sta mm 27 A 2 ¢ oy iS ia Sera ey, wee att ad ates aA ee ees de wee eer) ate ce ba ee ae le at - "sy Sr eet aaa ad! ! 5 ern tat. . pnteinaner be rater se wan eect ia nae the -y ie Paras aecgt to Senta wesc : - . ' tok La A penn . - . That each of the respondents by one of its directors within seven (7) davs file and serve on the applicants an affidavit which states in respect of each of the three packaged bottles of fragrance which constitute Exhibit B in these proceedings whether: (a) the respondent acquired the package, the bottle and the fragrance from three different suppliers; (b) the respondent acquired the fraqrance in the bottle from one supplier and the package from another supplier: or (c) the respondent acquired the fragrance in the bottle in the vackage from one supplier, and if in respect of all or anv of the three packaged bottles of fragrance the answer to (b) or (c) 18 in the affirmative, states in respect of each of the three packaged bottles of fragrance SRT PIRATE PAT See ne er ne one? tot wag time * at ' Y et aban Dee ce ie ener nt ee En ne eee a tne ne a ne te ie at te a ta at ek te Ble te - ' ee a . . wt wet th ee ek er nek ne ee a ee te ae ee Be ee eo F a d 4. Bi - ad ih 3 (d) the name of the supplier or suppliers of j the fragrance in the bottle or the ae fragrance in the bottle in the package. J as the case may be, to the respondent: 2 (e) the address of the supplier or suppliers: reas (£) the quantity of like goods acquired from Pewee) the supplier or suppliers: and (q) the date of each supply. * 3. The costs of this application be the applicants' costs in the principal proceedings. : 4. Stand the matter over until Tuesday 25 June 1985 at _ 9.30 a.m. 5. Liberty to anv party to apply on twenty-four hours' ' notice. That liberty 15 in respect both of the orders that have been made or the matter of directions for further steps in the proceedings te a NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. cae OE eae elas Rinweheied Mae ee et eta H > e angethin ec eT BON ed Pe. nee Se Se ve Neer a de te a eke LS ene ee Bo run so tet Ea wt, uF : : " we tL ee Clea Ea mm ER he tat Nein Oe Membre a AEE Ae te lk al ale ae ae ne el re de te aa er a ene IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ' No. 135 of 1985 ) GENERAL, DIVISION ) BETWEEN : BENTLEY FRAGRANCES FrY LIMITED First Applicant CHARLES OF THE RITZ GROUP LIMITED Second Applicant AND: GDR_ CONSULTANTS PTY LIMITED First Respondent - ALIMEAST PTY LIMITED Second Respondent CORAM: WILCOX J. DATE: 7 JUNE 1985 PLACE: SYDNEY EX TEMPORE REASONS FOR JUDGMENT This is an Application for interlocutory injunctions in relation to the distribution of what are called in the evidence "fragrances". The applicants are two companies. The first applicant, Bentlev Fragrances Pty Limited, is a company saab ic ded haa.:ietnh dacteteseehademnenehbemaetdentdaaes ait ianetmaenenncanet meme niemaes eee amen endh tadceriehletaiee seem sede adc aneeeienem aieaat ie temeencadaieie ainmmteahantimcaactt tak tata nena htamtiade alii ea aiden hal awe oa ft + 7s - " ~) ~ + - ' . - ' sagt y a ae Bob Se, "rie ry ant eer reas ' Ss: es aoe : fa pe le Ga ae ay NL a da ee a ee me ee ee ae 2. incorporated in New South Wales which has for a number of vears distributed within Australia three perfumes or fragrances which appear to have a considerable reputation, both in Australia and elsewhere. The affidavit of Mr Bruce Moonie, the supply director of the first applicant, indicates that the company is the sole distributor of those fragrances within Australia. Distribution has taken place over varving times in respect of each of the three fragrances. The company has distributed a fragrance manufactured by a company called Nina Ricci and styled "L'Air du Temps" since at least 1967. a fragrance produced by Oscar de la Renta Limited and called "Qscar de la Renta" since 1981 and, since 1977. a fragrance styled "Opium" which is apparently produced by Yves St Laurent and distributed by Charles of the Ritz Group Limited. a United States company which is the second applicant. The evidence indicates that each of the three names is the subject of a trademark registered in Australia, the trademark 1n respect of "Opium" being registered in the name of the second applicant. Mr Moonie's affidavit sets out the net wholesale value after sales tax of the Australian sales by Bentlev Fragrances for each of the fragrances. The sums are considerable, currently ranging from $2.7 million per vear in the case of "Opium" to $651,000 in the case of "Oscar de la Renta". Mr Moonie also establishes that substantial sums were spent during 1984 bv the first applicant in advertising each of the three perfumes. those sums running into hundreds of TET Geen yt tren me ne tem ee ere ee eae on so ae ee MoT ye t 3 ph Fo i a Re entre te. sat ae wee ee enka wal, UAE ER i ar 0 Pa es . aS a . 8 than ee ee Rahs ab ees a ae ae ok a Sir ls Monies Ur te ste ee ' Au mie ae : y thousands of dollars. It appears to be clear that the first applicant as distributor and the second applicant as the overseas supplier and owner of the trademark "Opium" have a considerable interest in maintaining the reputation of the three fragrances and in maximizing sales in Australia of those fraqrances. There have recently appeared in magazines of wide circulation, namelv "Womans Day" and "TV Week", advertisements placed bv or on behalf of one or both of the respondents. The advertisements for practical purposes are in the same terms. They show a reproduction of a bottle of a fragrance stvled "Joy de Jean Patou. Paris". and a reproduction of a bottle stvled "like/tel Joy by Joanne". The bottles are of similar volumetric capacity but the desians of the bottles are quite dissimilar. The advertisement compares the cost of what I will call the original product with the cost of the likeness and the difference is marked $125 in the case of the original and $19.95 in the case of the likeness. In prominent printing the advertisement includes the words. "and your nose can't tell the difference". It then qoes on to announce: "New from Joanne - stunning likenesses of -" and it lists 12 well-known perfumes. They include "L'Air du Temps", "Opium" and "Oscar de la Renta". The advertisement qoes on to state that Joanne believed that the world's top perfumes are too expensive and that they have an alcohol base that dries the skin, "so Joanne assembled a team of clever voung scientists to develop a new wot eel. wet ee ene) arachnids ee ab me Ba er ote NP a el en ee Ee eee 4. evr da coh EAT a ease 7 def tans' ae ot : A erasthen Une toatiie oe we 4. range of true likenesses of the world's 12 top perfumes". It includes the words, "and thev succeeded". After commenting on the difference in the base the advertisment includes these words: "Now vou can envelop vourself in the romantic, million dollar aura of whichever Joanne likeness vou choose for just a few cents a dav. You 11 be the envy of your friends ... because only you will know its Joanne and not the brand costing perhaps hundreds of dollars more. Not even experts could tell the difference." I think it 1s quite clear that the advertisement is conveying to readers that what is offered for sale by Joanne 1s not the same as the original fragrance. This appears not only because of the repetition of the word likeness both in the body of the advertisement and in the mail order coupon at 1ts foot but also because of the very description of how 1t came about that Joanne is able to offer these products for sale. However, the applicants complain that a reader of the advertisement would be led to believe that the fragrances offered for sale by Joanne are indistinauishable in point of aroma from the original perfumes of which thev are likenesses. In his affidavit Mr Mosnie. who has been emploved in the industry for 14 vears and who claims to be competent to distinguish fragrances on the basis of smell. states that he has compared by smelling each of the three original fragrances with the product advertised and sold bv the respondents and that each of the relevant original a 4, 4 -. oo Meneeb th p35, - 7 Oe 2 eee ~ > oof . we . "OY | gett a3 . ~ oe é , TR oa rs Shee oe aed os awk >, . 5 JOTI UR Slob a ee ee ee Pe a ets rom a ' Ul pees at perfumes 1s distinctly different from the likeness marketed REC etary ae by the respondents. Mr Moonie's evidence was not challenced either by cross-examination or by evidence in reply. I therefore proceed on the basis that. for the purposes of this application, it is established that there 1s in fact a nat bee distinct difference between the original perfume and the celevant "likeness"; at least in so far as the three perfumes with which this application is concerned. ae eee There was some question as to whether Mr Moonie Aas amerhek oe S should be reqarded as an expert. It seems to me that he does have expertise. The art of distinguishing fragrances is something which I would have thought was best learned on . the job by people who work in the industry. No doubt there Ne are matters of scientific learning which may be used in support of an opinion on that matter but I would not have fe bed aie hee thought it was necessarv to have scientific or academic qualifications in order to sav that there was a distinct difference between the perfumes. However, it does not seem Wm mee W etlve to me to matter verv much whether Mr Moonie should be regarded as an expert or not. The fact 1s that the advertisement makes two claims in respect of not telling the difference. Firstly it makes a claim in effect that non-experts cannot tell the difference: it does this in two ways, both by the bold heading to which I have referred -- "and your nose" -- and also by the reference to "vour friends" not appreciating the difference. This seems to me Feed ene nk neste nee ee eed alts ye Gdns et Res, yt sees Se saeiaanit leniene "aarti hae lmeenanahamie deat scene amdeneteh amnenaiminanpeeatehaaamiontnamcaieetaineaaa te eeneaamenen enaaiettaems Eieiaer-aelliniicetents seediencs em tameenadteatitatatticaat aed cad 4 . ' . ~ rs " ' 7 3 i . . , ' ro wot on "Te ty, ste oa cok asta Pp er re eee eee P rey Gee ere ~ a ee are deka. sel senate yore a7 x, micnnaastoveehnar 6. clearly to indicate that ordinary people will not be able to distinguish between the oriainal and the imitation. However, the advertisement goes on to say that "not even experts could tell the difference". So wnether or not Mr Moonie 18 reqarded'as an expert or. for present ourposes. an ordinary person, his evidence indicates that the statement in the advertisement is false. Under those circumstances it seems to me that there 1s at the very least a serious question to be tried as to _whether the publication of the advertisements constitutes misleading or deceptive conduct within s.52 of the Trade Practices Act 1974 and also whether there is a false representation that goods have a particular standard or quality within the meaning of s.53(a) of the Trade Practices Act and probably also as to whether the respondents have not engaged in conduct that is liable to mislead the public as to the characteristics of goods within the meaning of s.55 of the Trade Practices Act. I do not think that the qgravamen of the applicants' case is. or indeed could be. that the products look alike or that it is represented that the respondents' product is the applicants' product. As I have said the get-up is quite different and the advertisement makes it quite plain that the products are not the same. a Bete ay ee ant eh Steet a arbeninl pean Boek Pe RP ne I ole tem eek Ne eee teara oan Pacman Rae ed rele meee wo Hla ann reli ast me to pane aw Nene ine ade AAS ae 2 Ee te ll Sil ce te ee sl a ae a oe te Lt a 7. However, the most sianificant characteristic of perfume no doubt 1s the aroma that it gives off. and to sav that the aroma of one is indistinaquishable from another. if im fact that statement is not true. seems to me to involve an arguable case. in relation to each of the three sections of the Trade Practices Act to which I have referred. In referring to an arguable case I have in mind at least the standard of "a serious question to be tried", although I would have thought on a prima facie basis the strength of the case could be put much higher. There seems to me to be quite a strong case under those sections. The evidence indicates that the advertisement was seen by an emplovee of the first applicant, Josephine Rigon, who thereupon went to the address shown on the order couron shown in the advertisement at Kinagsarove, a suburb of Svdney. She there purchased a bottle of each of the three fragrances, marked by the respondents as being "like Opium". "like L'Air du Temps" and "like Oscar de la Renta". It is the contents of those bottles which were compared by Mr Moonie with the original products. The packaging in respect of each of those three bottles is similar. The bottles are in a shape which is quite dissimilar from the shape of the bottles of the original perfumes. The package bears on the outside of it words both in the English lanquage and French language, the English version being: "Essence o11 perfumed Paar) 'te adh wens at 97 Ltt be died tis ones 2 4 aentde " et . yt st wer tiuhas carbine' et ar) 8. by Joanne; ingredients fragrance. dipropolene. glycol; fragrances like/tel Opium" and, on the bottom, "Generic Perfumes International, 128 1 Delta BC 34 M T3 TC - made in Canada". In velation to the conduct of the respondents in marketing the products packaged in that way. the applicants rely heavily upon the use of the relevant names, "Opium", "L'Air du Temps" and "Oscar de la Renta", both on the outside of the package and on the bottle. Those names are used, but in the context of the following the words. "like/tel" with the addition of the words, "by Joanne". Counsel for the applicants arques that the words "like/tel" will not necessarily inform the person who sees the package or the bottle that the contents are different from the original. He points to the comparative size of the letters of those words as against the letters of the name and suggests that people are likely to be merely confused. He emphasises that the names have considerable reputation and that not all persons who purchase will appreciate that the get-up is different. Alternativelv, counsel puts the submission that a statement that a product is "like" the original must be read in this context as a statement that it is like it in terms of aroma, being the most relevant characteristic of a PEE BT eR i em mn en ee re re mene oe pe ee ce ty ee tae ee . - ' - - ne ' . Yo een ~- "4 OOF > CME a ab ret tt tae Gt a lela ae ca der eam ae ale te lar ae i RNIN tine Renae ale me ym he ae wk ae me oe eo tem ae Ot a os ong, weet ge pee ee aE et Ee ae OE SSO OTe Seek eed were an mera kare -¢ ' as ee a tate fC oe ee er ey fon Meno IMAL pt ah BAL LS re ob Maree LAP InG Dee AG 7 we a al 9. fragrance. In short, he seeks to put the matter two ways, depending on the view that is taken as to whether the purchaser appreciates the fact that the package and the bottle are making a statement that this 1s not the original but merely like~ the' original. In relation ta this claim, 1t seems to me that there is a serious question to be tried. within the meaning of that phrase as used in the authorities. It may be that the claim in respect of this matter is not as strona as in respect of the advertisement, but I think it is correct. as counsel suggests, that whether or not the purchaser appreciated the significance of the word "like" he or she is likely to be mislead. If he or she did appreciate that siqnificance, then I think he or she would understand it to Mean that 1t was like the original in terms of the aroma of the product; and that, on the evidence, 1s an incorrect statement. If, on the other hand, one assumes that this was not appreciated because of the size of the lettering, then the person is likely to be in a position of having his or her understanding dominated by the use of the name, causing a belief that this is indeed the same product. I come then to the balance of convenience in respect of the granting of interlocutory relief along the lines of that sought in para.1 of the amended Application. I have indicated that the evidence establishes a oe ee Oe RCI EN TER I ORO TE TE I LG OTe TD I EE ETS TBO G s . wore ~ - oa ¢ " res ee ee ae ae a ne Ne ER foe te ke er nel ae we tae rare ee a te ee et oe Tin 2, 16. ry of Hf oe rae ty Hacer! See teeden®. considerable trade in the original perfumes by the applicants and a considerable investment in their reputation as a result of advertising. There 1s no evidence as to the bee position of the respondents. It-appears to be a fair inference that thev have incurred the expenditure of two : magazine advertisements -- how much that would amount to in dollar terms I do not know -~ and there 1s nothing to indicate any other expenditure. I do not know whether they have laid in any stock of the products or outlaved capital in anv other wav. ere eee ed Under those circumstances I think I have to approach the matter on the basis that if the respondents are allowed to continue to sell their products, pending the final disposal of the matter, the applicants will be 7 confronted, or may be confronted, with competition by ' products which sell at something like 20 per cent of the + cost of their products and which are stated to he indistinguishable in terms of the oniv significant characteristic of the products. If people believe that statement and choose to purchase the respondents' products instead of the applicants' products, thev suffer the loss of sales. If people believe the statement and purchase the rene van respondents' products, being people who would not have been prepared to spend five times as much to purchase the ve ans applicants' products, then it can be said that the applicants have lost nothing in terms of sales. However, if aD Neely het alee Lae ' Phe Ta EE Ae RR OS RE me een ee rr cee moe N t Py By wee ra . ; tet - + ~ ee rok - 4 y 1 - oe 2 ll. ecthocmes u entbenii, 7° me eet rete e the position is that the products are unlike that of the applicants, and if it is a fragrance which does not attract the approval of purchasers, then it seems to me that there 1s a real potentiality for damage to the reputation of the product's marketed by the applicants. I think that 1t is a reasonable apprehension of anv vendor of a product of high reputation that the reputation of the product, and therefore its commercial value, would be damaged by the marketing of a cheaper product which is wn le tee ae 0s sede ee oe ne falsely stated to have the same relevant characteristic. If such damage occurs, then 1t is almost impossible for the 1 applicants to prove the facts to quantify the extent of their damage. If, on the other hand, an injunction is granted, the position will be that the respondents are precluded from proceeding with the marketing of these ' products. If, in the end, it turns out that the Application .! fails, the respondents would at least be able to point to some material to indicate the extent of the response that they have had from the initial advertisement. It would not i be easy to assess their damages, but I think that there 1s \ some basis upon which the Court could assess a figure which was likely to provide proper compensation for then. I think that considerations of the balance of convenience point to the granting of injunctions and I propose to qrant injunctions broadly in terms of para.1 of = nee Sea dcesoke atoniaaaibenndbeamatadsinetaaniadhiin sastehine medmatadmneaaimnanentaneaenneneeanttaanines = olmeamiamemamtaaimmemnmnn taisdae inedible mieten meme teatnetac acnat atten Setienatited tela aco * biais f Ky «oe oom ve Dow ae . es - 7 Vee ee oy Py ie Kc mPa nic eu Teaeasai ota a Ee ar: tras ia 2 cee ot ten tale arse! detec en! "ee ae tae ba te ee afd tee a aa Sch actae on -a, *% sy wae anki ad = Fe Fe TER TENE TRE a pe Se me teeter eee! Fy ' - Pree aarp din mammal tte Es ah tee Ae hon 6 at a a are er dint chem hd ab Nar nr ms de te ee em ee wt 12. the amended Application. I think it is correct to say, as has been arqued on behalf of the respondents. that as at presently framed it 1s too wide in that it refers to products other than those referred to in oara.3 of Mr Moonie's affidavit. I will come back to the precise form of the order in due course. There 1s a further aspect of the matter. In para.7 of the Application, the applicants sought an order that the respondents, by one of its directors, within seven days file and serve on the applicants an affidavit which, in relation to each of the relevant perfumes, supplies certain information. The basis upon which that application was made was the decision of the House of Lords in Norwich Pharmacal Co v The Customs and Excise Commissioners £19743 A.C. 133. During the course of argument, I indicated to counsel for the applicants that the orders sought in para.7, appeared to be too broad. They seemed to have been drawn on the assumption that the products marketed by the respondents were packaged and imported in that form. It mav well be that this 1s so. but there 1s no evidence of that fact. The respective packages do state that the products were made in Canada, but that is not inconsistent with the possibility that 1t was imported into Australia in bulk. and not under any particular brand name. and here packaged by the respondents or one of them, or some other person. - 4 " ona a aan ot . 24 ¥ ' . me wow ee Seon ES se es * t x a BS EE ae aera mee ks dace ae le aaah ee ea A ak ae es Dah nm ak a a ee ' 13. Soy heya a Counsel then sought and obtained leave to amend the Application so as to proffer an alternative form of order. contained in para.6A of the amended Application. That order tyes aoe | would require the respondents to file and serve affidavits stating whether the respondents acquired the package. the bottle and the fragrance from three different suppliers; whether the respondents acquired the fragrance in the bottle from one supplier and the package from another supplier. or whether the respondents acquired the fragrance in the bottle AO A le ne a we te i a in the package from one supplier and, if in respect of all or any of the three packaged bottles or fragrances the answer to either of the last two questions was in the affirmative, to state in respect of each of the three packaged bottles of fragrance, the name of the supplier or suppliers. the address of the supplier or suppliers. the quantity of like goods acquired from the supplier or suppliers and the day of each supply. Counsel for the respondents resists the making of eS Ne ke ee er ee any order along these lines. saying that the request amounts to a fishing expedition designed to provide material for some other action against some other respondent. I think that there 1s no doubt that the applicants hope to obtain information which will enable them to consider whether they should take action against other parties. but I do not think that that 1s a legitimate objection to the type of order Mahl OAD ee a which 1s sought. In Norwich Pharmacal, the application was ' + "mAs os ow, p eer reewencree tom ace IRR a eP OY aN NEP CTS EY I ce ene ee > 7 ae aera 7, Sedat aten tedieaiaeieie teat Spe . - ao - - « . . ae et - . ce a an ree . . ~ weet ic SS etc vB 6 2° woe a Db ee ate wR Mie ae I "Ne aw eet ad Vlas, be Tt. . ett aden Me a ate ed mat nee Pet 'st j eee seat a atenltart Bie BOSS T Me Mer ls EE ae ENE EO Ne a ht ee ee a te nt i ae a te 14. brought against the Customs and Excise Commissioners in order to obtain information as to the person involved in importing a particular chemical compound into the United Kingdom in breach of tne rights of the appellants. The Commissioners were not suqdested to have acted wronaly in any way, but they were involved in the transaction as a government agency and it was held that this was enough to entitle the appellants to an appropriate order. In that case it was made to appear to the court that some person was acting wrongfully. The purpose of the proceedings was to find out who was that wrongdoer in order that proceedings might be taken against him. I can see no difficulty in principle in making an order such as that made in Norwich Pharmacal against a respondent who is himself both a wrongdoer and a person who can cast light on the identity of some other wrongdoer. The present applicants could have brought a separate action simply seeking relief along the lines of that sought in para.6A or 7 and without seeking anv other relief against the present resnondents. It cannot be a proper obrection that they have chosen to do the two things in the one Application. There is, of course, this distinction between the present case and the Norwich Pharmacal case, namely that in the Norwich Pharmacal case it was made to appear to the court that there definitely was some other person who had acted wrongfully. In the present case this is not clear. It is conceivable that, as I have said. the fragrances were only packaged by the respondents ~ - -_~ ta saoa it a . x ae : oP ta tase Neral a Sas Re Cas ee ae I ee abe as id ie Me ane ele aera tae te at ne ne ne tee ae ew "4 15. el be and that they are the only people who have acted in any way in contravention of the Trade Practices Act or in breach of any trademark rights. It is for that reason that I think that' the relief to be granted should be restricted to De ee ee Bab teh eh : finding out the facts Gbout the nature of the vackaging and 1t should not go on to require the information sought in para.7. However, it seems to me that the modified claim for relief contained in para.6A is relief to which the applicants are entitled. The applicants, through their counsel, have given to the Court the usual undertakings as to damages. Having regard to that fact and for the reasons that I have set out, I make the following orders: I order that the respondents, each of them, their servants and agents be restrained until further order from engaging in conduct in trade and commerce that is misleading and deceptive or likely to mislead or deceive bv: (a) using or causing to be used the names "L'Air du Temps". "Oscar de la Renta" and "Opium" or any of them in any brochure. literature, advertisement or writing or in any container or packaging used for or in connection with the manufacture, distribution or sale of any perfume, perfume concentrate, parfum de toilette or eau de toilette: or sis o . ' i wea en ee Ae a bee ba a Re ae ee .- pew eth ae de STATA eae eth f a TA RE I TEES A GO Se SRL RANA REE AEN A SEY AY MN RRO A gS mr ae eo ye ~ ' ~ boo : " . ~ ~ + hag TE" ETE SN ule Lone phate teggt carte eeu ak yt Heew Une at 7a ~A oe at MS tentieae eee ale Yon am, e , (aban tome BEES Nek Seat Neer dCs Ceara And da tblatlet nna atm Li weenie Ae A he Ft ne Pee ee ee 16. (b) representing whether orally or in writing that the product manufactured, distributed or sold by the respondents or either of them is indistinqguishable in perfume or fragrance or has a close likeness in perfume or fragrance to anv perfume, perfume concentrate, parfum de tollette or eaux de toilette distributed in Australia by the first applicant under the name or under a name which includes the name "L'Air du Temps". "Oscar de la Renta" or "Opium" or any of them. I further order in accordance with para. amended Application. The proper order for costs 6A of the is that the costs of this application be the applicants' costs in the cause. I stand the matter over until Tuesday, 25 June at 9.30 am and I will give any party liberty to apply on twenty-four hours' notice. That liberty is in respect both of the orders that have been made or the matter of directions for further steps in the proceedings. I certify that this and the fifteen (15) preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Wilcox. ' Associate: Kou wee WOH 2R , Date: 7 June 1985 ee eR ae mre YE BS nr ee ee OP 2 . - > ~~ eo et pte ay . * =F: oo . Yan bag: ils . woos trae wv . " oars . , . - an " age ye , . . + a eee se te he ee ee ce te ae ee es al le OE le ee a ety 4 . Counsel for the applicant: Mr S D Robb . Solicitors for the applicant: Messrs Baker & McKenzie 3 Counsel for the respondent: Mr A P Whitlam ; Solicitors for the respondent: Messrs Helliars Date(s) of hearing: 7 June 1985 Pe ere ee ee nn eae att wee Fae Stes Oe ee ee el ey 1a * ' ton cab twee ah re ae wedDanbrdubs mee me ian ST FE Ym RR ETE OT aE A TR REE TG ETN EET LS OTR Pe CR Fam ne Soe gr rR Fr 4 a * 4 lv a? - eo ate ' - ey Pr a re . of =f - vil% . - 4 ars ~ _7 ~ - -* = f - Tt om oe Ft . . - ' . 2 ATE ees 7 .