Lewis, T.A. & S.P. v W.D. & V.J. Hambley Pty Ltd & Ors [1987] FCA 491

_——

JUDGMENT No. AWN

IN THE FEDERAL COURT NOT INTENDED FOR GENERAL DISTRIBUTION

OF AUSTRALIA WESTERN AUSTRALIA

DISTRICT REGISTRY GENERAL DIVISION

No. WAG 79 of 1987

BETWEEN: TREVOR ALAN LEWIS and SHARYN PATRICIA LEWIS

Applicant

and

W.D. & V.Jd. HANBLEY PTY LTD First Respondent

MAL JONES & CO. PTY LTD Second Respondent

WARREN DUDLEY HAMBLEY

Third Respondent

CORAM: FRENCH J.

30 JULY 1987

EX_TEMPORE REASONS FOR JUDGMENT

This is a claim for urgent interlocutory relief in an

application in which the applicants seek permanent injunctions

under the provisions of the Designs Act 1906 and the Trade

Practices Act 1974 in relation to the sale, marketing and

promotion by the respondents of a device known as the Warrie

Crutching Frame.

FEDERAL COURT OF ?

5 AUSTRALIA A HOWAL

om GEGISTAS 'A s

\ A

qe ee

2.

That device is said by the applicants to fall within the scope of the monopoly conferred upon them in relation to a like device, the subject of Australian Design registration number

96858.

The causes of action relied upon are:-

(1) infringement of the registered design;

(ii) somewhat obliquely, contravention, associated with that infringement, of s.52 of the Trade Practices Act.

No statement of claim has been filed but there does arise from the affidavits put before the court by the applicants, an allegation that by selling the products said to infringe their registered design, the respondents impliedly represent that they are entitled to sell the products contrary to the monopoly, which

representation is misleading and deceptive.

Certain promotional material put out by the first respondent in relation to the Warrie Crutching Frame conveys the impression that there 1s already in existence a registered design in relation to that article. The truth is that an application for a registered design has been made in respect of the respondents' product but not yet determined. Other promotional material put