Flamingo Park Pty Ltd v. Dolly Dolly Creation Pty Ltd & Ors [1986] FCA 80

CATCHWORDS

CONTRACT - Fabric design created by customer - Design left

with printer for use only on fabric printed on benalf of customer - Use of design by printer on fabric printsd for other customers - Design including name of principal of applicant - Name reproduction on part of fabric pfin \ted for others - Clothing marketed by other customers inferior tc that of applicant - Measure of damages - Compensation for lost sales - Whether damages recoverable in contract for damage to reputation - Whether exemplary cr aggravated aamages should be awarded.

TRADE PRACTICES - Passing off - Sale by respondents of clothzng containing design made by applicant - Whether misleading or deceptive conduct cr vassing off - Position 2 relation to garments containing mame of principal of applizant - Whether cepresentation of association - Claim for indemnity by cross-claimant upon basis that its misleading conduct causec by cross-cespondent's refraining from disclosing tnac design bore signatuce.

CONFIDENTIAL INFORMATION - Design supplied to printer for use oniy on behair of applicant - Whether duty of confidences arose - Whether acticn for breach of duty available after sale by

applicant to members of public of garments bearing the design.

Trade Practices Act 1974 ss.4, 52, 82

Hornsby Building information Centre Pty Limited v Svdnev Building Information Centre Pty Limited (1977) 146 CLR 215, Parkdale Custom Built Furniture Pty Limited v Puxu Pty L-m-ced (1982) 149 CLR 191, Saltman Engineering Company Limited v Camobell Engineering Ccomrpany Limited (1948) 65 RPC 263, Coco v AN Clark (Enqingers) Limited £1969] RPC 41, O'Mustad & Son v Dosen €19643 1 WLR 109, C Czarnikow Limited v Koutos £1964] 1 AC 350, Enzed Holdings Limited v Wkythea Pty Limited (1984) 57 ALR 167, Yorke v Lucas (1985) 59 ALJR 776, Gates v The City Mutual Life Assurance Society Limited (High Court, 26 Pebruary 1986, not reported) applied.