Federal Court of Australia
JUDGMENT No. bas 21
CATCHWORODS
TRADE PRACTICES - old-established business name - business absorbed in successive take~overs - use of name abandoned - new company's misleading use of old name - whether cause of action.
TRADE MARKS AND TRADE NAMES - passing-off - use of name
discontinued - residual goodwill - whether associated company may sue as for passing-off.
Trade Practices Act 1974 - 5,52
Elders IXL Limited & Anor.
v. Australian Estates Pty. Ltd. Qld G123 of 1985
PINCUS J. BRISBANE 19 NOVEMBER 1987
P="TIVED 19 NOV 1987
\ FEDERAL COURT OF =) AUSTRALIA
"\ PRINCIPAL 59 REGISTRY
IN THE FEDERAL COURT OF AUSTRALIA )
QUEENSLAND DISTRICT REGISTRY ) QLD G123 of 1985 GENERAL DIVISION )
BETWEEN: ELDERS IXL LIMITED First Applicant AND: AUSTRALIAN ESTATES LTD.
Second Applicant AND: AUSTRALIAN ESTATES PTY. LTD.
Respondent
PINCUS J. 19 NOVEMBER 1987
REASONS FOR JUDGMENT
The applicants seek a declaration, damages and an injunction on the basis that the respondent's use of the name
"Australian Estates" constitutes passing-off; the claim 1s also
based on the Trade Practices Act 1974. In essence, the
applicants' case 1s that, although they no longer use the name
"Australian Estates" in a public way, the respondent's use of that
name 1s likely to make customers think it 1s connected with the
applicants.
The respondent''s says that it adopted the name "Australian Estates" innocently and without intention to mislead
the public, that in fact the public is unlikely to be misled, that
the applicants cannot, in any event, obtain protection for a name the use of which they have entirely abandoned and that, if all other defences fail, the applicants have no such interest in the
name "Australian Estates" as to entitle them to relief.
The evidence is not entirely satisfactory, in that it includes mention of quite a number of names of companies and businesses thought to be connected with the applicants, but whose bearing upon the events in question is obscure. The essential
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