Hella-Australia Pty Ltd v Plentium Pty Ltd [1987] FCA 800

sp he ends eet SE bwws FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) No. VG58 of 1987

GENERAL DIVISION )

BETWEEN: HELLA-AUSTRALIA PTY. LIMITED

Applicant

AND: PLENTIUM PTY. LIMITED

Respondent

CORAM: Jenkinson J. PLACE: Melbourne DATE: 16 April, 1987

REASONS FOR JUDGMENT

Application for interlocutory injunction.

Each of the applicant and respondent is a company which sells automotive parts by wholesale. The applicant sells electrical light and signal equipment for motor vehicles and boats. Its business is very large and the reputation of its products is high. The respondent sells motor vehicle parts and accessories, including several dozen items of lighting equipment. The applicant sells hundreds of items of lighting equipment. The applicant sells items of lighting and electrical signal equipment to all of the five principal manufacturers of motor cars in Australia as well as to others who in the course of carrying on their manufacturing or repairing businesses incorporate the items

into vehicles. The applicant also sells those items to persons

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who sell the items by retail to consumers who in turn incorporate or procure others to incorporate the purchased items into the consumers' vehicles. The respondent sells to the same description of buyers. Sellers such as the applicant and the respondent assign to each of the items they sell an identifying number. Reference to an item of equipment by those engaged in trade in the item, and even by some consumers who are not engaged in trade, | is often made by the number of that item. The respondent endorses on the packaging of a number of the items of automotive lighting equipment which it sells and on advertisements of those items not only the identifying number which it has assigned to the item, but also the word "replaces" or the words "replaces for", after which is endorsed a number assigned by the applicant to an item which the applicant sells. In each such a case the two items, that of the respondent on the packaging of which the applicant's number is endorsed and that of the applicant to which that number is assigned, have the same functions. It is the applicant's case that each of these endorsements constitutes a representation by the respondent that the item of equipment which it is offering for sale (a) is of the same quality as the applicant's item, (b) is substantially identical with the applicant's item, (c) is suitable for the purpose or purposes for which the applicant's item is represented by the applicant to be suitable, and (d) may lawfully be used for the purpose or purposes for which the applicant's item is represented to be suitable. The making of these representations is said by the applicant to constitute