[a ep? (NOTE: This judgment relates to its own facts and is not of sufficient general interest to justify circulation) IN THE FEDERAL COURT OF AUSTRALTA ) QUEENSLAND DISTRICT REGISTRY ) QLD G94 of 1985 GENERAL DIVISTON ) BETWEEN : POOLRITE EQUIPMENT PTY LTD Applicant AND: HALHAPIN PTY LTD (TRADING UNDER THE REGISTERED BUSINESS NAME POOL FILTRATION AND EQUIPMENT) Respondent DATE QF HEARING: 20 September 1985 DATE JUDGMENT DELIVERED: 20 September 1985 COUNSEL: for the applicant Mr P. Morrison instructed by Thynne and Macartney - for the respondent Mr D.R. Boughan instructed by Hicks and Bennett D.T. O'BRIEN ASSOCIATE TO PINCUS J. 20 September 1985 eq cosmo pes st cee aoe oe reat alte oy ve. Le Toa aan " ave > Socadhalih ee tate enamndeiiaaeeennna cacendceceniael eeanmanieneeceaete) ape IN THE FEDERAL COURT OF AUSTRALIA ) QUEENSLAND DISTRICT REGISTRY ) QLD G94 of 1985 GENERAL DIVISTON ) BETWEEN : POOLRITE EQUIPMENT PLY LTD Applicant HALHAPIN PTY LTD (TRADING UNDER THE REGISTERED BUSINESS NAME POOL FILTRATION AND EQUIPMENT) Respondent MINUTES OF ORDER JUDGE MAKING ORDER: PINCUS J. DATE OF ORDER: WHERE MADE: 20 SEPTEMBER 1985 BRISBANE THE COURT ORDERS THAT: l. Until further order the respondent be restrained from using or displaying a banner prominently shown in the lower two photographs in Exhibit C to the affidavit of Peter Alan Rabbidge filed herein while such banner continues to display the "Poolrite" and "Pearl" logos depicted thereon. The costs of today's application he costs in the proceedings. ©. aoe rp nnn oe "omy wt samy 8S apt meee acer on ge oy oo ae 2 soe ye - cy NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. seen & Pre IN THE FEDERAL COURT OF AUSTRALTA ) QUEENSLAND DISTRICT REGISTRY ) QLD G94 of 1985 GENERAL DIVISION ) BETWEEN : POOLRITE EQUIPMENT PTY LTD Applicant HALHAPIN PTY LTD (TRADING UNDER THE REGISTERED BUSINESS NAME POOL FILTRATION AND EQUIPMENT) Respondent PINCUS J. 20 SEPTEMBER 1985 EX TEMPORE REASONS FOR JUDGMENT This is an application for an interim injunction to restrain allegedly misleading conduct. The application was made on very short notice but the respondent has been represented by counsel and presented some evidence. Although, as it seems to me, the respondent was disadvantaged by the very short notice, it was certainly ina better position than it would have occupied had it had no notice of the making of the application. Me Ramsay, a witness cailed for the respondent, has explained, I think adequately, the general nature of the facts grounding the defence which would be advanced 1f the matter were fully tried. rr er er he About the basic facts, there seems to be little dispute. The respondent used be a distributor for the applicant and used distribute equipment which had a representation of the word "Poolrite" in accordance with a particular design. During the period of the distributorship the respondent also used another logo which represented the word "Pearl" under a similar design, that is, the word "Pearl" was represented in such a way that it looked similar to ""Poolrite". That was the subject of some correspondence between the parties which was tendered, and as a result of which the respondent agreed to alter the "Pearl" logo; 1t was to be altered ina way which is proved before me. The alteration involved not only a change in the style of the lettering, but also a change in the colours used, in that new logo was to have a dark word on a light background and not, as previously, a light word on a dark background. Mr Boughen for the respondent says, accurately, that the existence of the agreement does not establish that the recent use of the old logo, to be mentioned, was misleading. Nevertheless, it seems to me true to say that it was misleading and unnecessarily so. In saying "unnecessarily so", I do not suggest for one moment that it was done dishonestly, but in fact the recently displayed logo "Pearl" looks very similar to the applicant's logo "Poolrite". The sole reason that, as the applicant complains, there has been a reversion to the use of the "Pearl" logo which the respondent agreed not to use is that the respondent had a large old banner with the old logo on it. mar ee ene eee sar oT ue i { i } Ps i U t f :r. +] i L r re ie } c ' The respondent put up the banner at a swimming pool show currently being conducted in this city, and despite what has been very ably said on its behalf by Mr Boughen, I do not understand clearly what right the respondent can possibly have to use the old "Pearl"" logo. It should not do so, both because it isa clear breach of the agreement made not to use it, and secondly, because it is rather misleading and suggests a connection with the applicant which the respondent does not in fact have. Mr Boughen pointed out that in the agreement constituted by Exhibit 1, there was provision for use of existing brochures. However, it is mot suggested that there was any exception of this banner and, indeed, to except it would have really destroyed much of the point of the agreement. I am therefore of the view that, prima facie at least, there is no good answer to the applicant's complaint that this old "Pearl" logo has reappeared and it should not have done. The remaining question is whether or not the banner of which complaint is made is otherwise misleading, as containing the applicant's "Poolrite" logo. IT have photographs of it before me and certainly the applicant's logo, "Poolrite", is very prominent. Mr Boughen, however, argues that any reasonable ground for complaint would be gone 1f the "Pearl" logo were covered up or otherwise removed. I think there is some substance in that submission. oey LM ee eee STR Sp eran, oer 2 ete yt ores -79 . , . - ogy - m8 ee oY oy : ary cask we eaten + sale me wae ene r 2 NG meee ae ee, . .- ried Rigen vee ye eran pop enges etree om ' an eee ; The view which I take, however, is that, although the matter is finely balanced, it is appropriate to restrain, for the time being, the use of the "Poolrite" logo aiso. Mr Boughen pointed out that, according to the evidence, other exhibitors at the show use the word and logo "Poolrite" to indicate that one may obtain the applicant's products from then. The banner, however, seems to me to suggest that the respondent has a special connection with Poolrite, either being Poolrite or being a distributor for Poolrite; it is in fact neither Poolrite nor a distributor for it, and I think the banner is rather misleading in that respect. Mr Ramsay gave evidence that the banner is quite an expensive item and he does not want to destroy it. I see no necessity for its being destroyed. Nevertheless, I am of the opinion that he should not use the "Poolrite* logo on it nor should he use the oid "Pearl" logo. He is of course quite free to use the new "Pearl" logo on it. In short, my conclusion is that the applicant has advanced a sufficiently strong case to warrant enjoining, for the time being, the use on the banner of either of the logos of which it complains, and I think they should both be removed or covered up, or the banner removed. wie - -- Hees -- eee — oe I wish to make it clear that, as to the "Pearl" logo, it is my view that both the use of the colours in it and the shape are objectionable. Both those aspects of objection would, of course, be removed by use of the logo which the respondent agreed to use in the correspondence, Exhibit 1. In the form suggested by Mr Boughen, on the applicant's giving the usual undertaking to pay damages or compensation, I order that until further order the respondent be restrained from using or displaying a banner prominently shown in the lower two photographs in Exhibit C to the affidavit of Peter Alan Rabbidge filed herein while such banner continues to display the "Poolrite" and "Pearl" logos depicted thereon, and I will order that the costs of today's application be costs in the proceedings. 'certify that this andthe & preceding Pages are a true copy of the reasons for judgment herein of His Honour Mr. Justice Pincus okhavcct O' Auer 20/9/35 Associate Dated ote ee