wOv SULIABLL FOR ROrORYTING FOR LIMIfLOo CISTRIBUTIOV JUDGMENT No..4837.8%..... CATCHWORDS DESIGNS - alleged obvious infringement of registered design - interlocutory injunction - whether serious question remains to be tried if Court reaches a concluded view that no obvious infringement has occurred - balance of convenience - inter-relationship between cause of action under Designs Act and claims for passing off and breach of ss.52 and 53 of Trade Practices Act. Designs Act ss. 30, 32B Trade Practices Act ss. 52, 53, 80 ROSEBANK PLASTICS PTY. LTD. AND ROSEBANK PRODUCTS PTY. LIMITED v DUNCAN & WIGLEY PTY. LTD. trading as D & W AUSTRALIA SCHOOL SUPPLIERS AND SOUTHERN CROSS BICYCLES PTY. LTD. No VG 109 of 1988 Ryan J Melbourne 20 April 1988 FEDERAL COURT OF \ AUSTRALIA \- PRINCIPAL - X \-ReGISTAY a NS Pos IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION Coram: Date: Place: No. VG 109 of 1988 ~~ SS BETWEEN: ROSEBANK PLASTICS PTY. LTD. (Firstnamed Applicant) ROSEBANK PRODUCTS PTY. LIMITED (Secondnamed Applicant) AND: DUNCAN & WIGLEY PTY. LTD. trading as D & W AUSTRALIA SCHOOL SUPPLIERS (Firstnamed Respondent) SOUTHERN CROSS BICYCLES PTY. LTD. (Secondnamed Respondent) Ryan J 20 April 1988 Melbourne MINUTES OF ORDER THE COURT ORDERS: 1. That the injunction granted by the Court on 19 April 1988 be dissolved. That each of the respondents keep a full and proper account of all sales made by it until the hearing and determination of the application herein of "T16" helmets manufactured by Tong Ho Hsing Industrial Co. Ltd., and any helmets identical or substantially identical thereto. That the costs of the applicants' claim for interlocutory relief including the hearing on 19 April 1988 and this day be reserved. That the claim for interlocutory relief be otherwise dismissed. AND FURTHER ORDERS BY CONSENT: 5. 10. That the defence and cross-claim (if any) be filed and served within 14 days of this day. That a reply (if any) be filed and served by 11 May 1988. That each of the parties file and serve by 18 May 1988 an affidavit of discovery. That any further affidavit or affidavits on which the applicants intend to rely be filed and served by 25 May 1988. That any further affidavit or affidavits on which the respondents intend to rely be filed and served hy 8 June 1988. That any affidavits in reply be filed and served by 15 June 1988. 11. 12. 13. NOTE: That liberty be reserved to either party to apply on less than 48 hours notice in writing to the other party. That the costs of the further directions given be reserved. That the directions hearing be adjourned to 24 June 1988. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules tl) IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No. VG 109 of 1988 GENERAL DIVISION we eww BETWEEN: ROSEBANK PLASTICS PTY. LTD. (Firstnamed Applicant) ROSEBANK PRODUCTS PTY. EINITED (Secondnamed Applicant) AND: DUNCAN & WIGLEY PTY. LTD. trading as D & W AUSTRALIA SCHOOL SUPPLIERS (Firstnamed Respondent) SOUTHERN CROSS BICYCLES PTY. LTD. (Secondnamed Respondent) Coram: Ryan J Date: 20 April 1988 Place: Melbourne REASONS FOR JUDGMENT This is an application for an interlocutory injunction restraining the respondents from infringing Australian Registered Design No. 88484 and, in particular, from manufacturing, importing, keeping for sale, advertising for sale, offering for sale, promoting the sale, selling or supplying a helmet bearing the design as claimed in that registered design. Interlocutory injunctions are also sought restraining the respondents in connection with the supply or possible supply of helmets made in accordance with the said registered design from:- "(a) engaging in conduct which 1s misleading or deceptive or is likely to mislead or deceive; (b) falsely representing that the helmets which are connected in the course of trade with the Respondent, are the helmets of the Applicants or have the sponsorship and/or approval of the Applicants; (c) falsely representing that helmets not connected in the course of trade with the Applicants, have the sponsorship or approval of the Applicants or one or other of them; (d) falsely representing that the Respondents have a sponsorship, approval or affiliation they do not have." As well, the applicants seek interlocutory injunctions restraining the respondents from passing off helmets advertised and offered for sale by them as, and for, helmets provided by the applicants or either of them, and from passing off the respondents as authorized distributors, licensees, dealers or agents of the applicants or either of them and from passing off their businesses as businesses or dealerships that are connected or associated in the course of trade with the applicants or either of them. By their application, the applicants also seek an interlocutory injunction restraining the respondents from infringing the copyright said to subsist in certain artistic works being drawings of a helmet design. However, the claim for interlocutory relief on that ground was not persisted in at the hearing yesterday. The firstnamed applicant, Rosebank Plastics Pty. Ltd., ("Rosebank") is the proprietor of the said Registered Design No. 88484 which was registered on 28 February 1984 as the result of an application lodged on 29 July 1982. The Certificate of Registration contains the following statements:- "Article in respect of which the design is registered: A HELMET. Statement of Monopoly: THE DESIGN APPLICABLE TO THE SHAPE OR CONFIGURATION OF A HELMET AS ILLUSTRATED IN THE ACCOMPANYING REPRESENTATIONS. Statement of Novelty: NIL." The representations accompanying the Certificate of Registration consist of four views of a helmet. Figure 1 provides a frontal view of a helmet with sidepieces designed to depend in front of the ears of the wearer. In each of these sidepieces there is inserted a rivet supporting the front branch of a roughly "U" shaped yoke to which a single adjustable chinstrap is attached. The front of the helmet is cut away to reveal the forehead of the wearer in what has been described as a "Roman Centurion" style. Above the cutaway section is a narrow band sweeping back to join the sidepieces in front of the ears and above that band is a depressed panel in the front centre of the helmet flanked on each side by three graduated vents, the largest of which is adjacent to the depressed panel. The depressed panel and graduated vents form part of a raised moulding which sweeps back on both sides and down to stop above the apertures left for the ears of the wearer. A short distance above that raised moulding sits a separate domed cap attached to the lower part of the helmet by a rivet above the sidepiece in front of each ear of the wearer. In the domed cap are three depressed channels separated by narrow ridges or ribs corresponding in width to, and directly above, the vents on each side of the frontal panel. Figure 2 is a side view of the same helmet showing that an aperture is left for each ear of the wearer. Forward of that aperture are set two rivets or screws, one above the other. Similarly placed screws or rivets are set in the side piece which depends behind the ear of the wearer. The side view also reveals that the domed cap sweeps down the back of the head of the wearer to level with the bottom of the piece covering the front and sides to which it is joined by yet another screw or rivet to the rear of and level with the lower of the two screws or rivets set posteriorly to the ear of the wearer. The channelled and ridged section on each side of the dome is continuous, stopping a short distance above the bottom of the back of the helmet. Figure 3 is a view from above the helmet showing that three vents of equal size are set in approximately the middle of the channels on each side of the top of the helmet. Figure 4 which shows the rear elevation of the helmet reveals that at the bottom of the channels on each side there is a further set of three vents approximately equal in size separated by a depressed panel a short distance above another depressed panel ending at the bottom rear of the helmet and extending from the outermost of the rear set of vents to the corresponding vent on the other side. The allegedly infringing helmet is made in Taiwan by Tong Ho Hsing Industrial Co. Ltd ("Tong Ho Hsing"), and is the subject of licence no. 822 issued by the Australian Standards Association. Unlike the helmet depicted in the registered design, it is moulded in one piece and instead of being cut away in the "Roman Centurion" style to reveal the forehead of the wearer, it has a peak or visor projecting down and slightly forward to a point roughly level with the eybrows of the wearer. It has no cutout apertures for the ears but sweeps gradually upward from the peak or visor over the ears and down to the nape of the neck. The chin strap is not attached to a "U" shaped yoke but is joined directly to the shell of the helmet by two rivets on each side, one forward of, and the other behind the ear of the wearer. The most obvious similarity between the registered design and the allegedly infringing helmet is that the latter has a similar pair of tripartite ridged or ribbed channels sweeping from above the nape of the neck across the top of the dome. The top and rear sets of vents are similarly positioned in those channels on the two helmets. However, on the allegedly infringing helmet, the front vents are separated from the channels commencing at the front top of the helmet by an indentation in the moulding which sweeps around to each side and disappears above and slightly to the rear of the ear of the wearer. There is no discernible difference between the frontal appearance of the vents and the depressed panel separating them on the allegedly infringing helmet and the corresponding aspect of the registered design. The applicants relied on expressions of opinion by two experts, the first of whom, Mr Pryor, a patent attorney and solicitor, deposed that on comparing the registered design with one of the allegedly infringing helmets manufactured by Tong Ho Hsing:-— "I formed the view that what had been clearly copied was the distinctive ornamentation of the design, mainly the ribs which proceeded from the front to the back of the hat. In addition to the ribbing there were nine apertures cut into the hat which were substantially identical with those of the registered design. These consisted of two apertures towards the front of the hat, two in the centre and two at the rear. In addition a moulded line which proceeded from the left to the right of the hat and which gives the appearance of some sort of separation in the hat was apparent." The second expert witness relied on by the applicants was Mr Bayly, an industrial designer of extensive practical and consultative experience. Mr Bayly set out his observations on comparing the representations in Registered Design No. 88484 with what he called "the Taiwanese helmet" manufactured by Tong Ho Hsing. He then deposed as follows:- "14. By the process of examination I formed the view that the rear and top elevation of the Taiwanese helmet are identical in all relevant design respects to Figure 3 and 4 of the Registered Design No. 88484. As to Figure 3 apart from the line of the external sun visor and position of the rivet shown on the drawing, the Taiwanese helmet is identical in design. As to Figure 4 and the rear view the Taiwanese helmet is of identical design except that the Taiwanese helmet has a slight curve on the bottom line. 15. But for the incorporation of a visor section not being a page-boy shape, with a curving lower edge not having sideboards which sweeps over the ear position and curves downwardly at the rear so as to give it a slightly different appearance from the Roman Centurian style, a comparison of the side view and Figure 2 of the Registered Design and the front view and Figure 1 of the Registered Design respectively shows that the Taiwanese helmet is identical in all relevant design respects to the registered design. This is best exemplified by comparison of the side view and Figure 2 on which I have drawn the curved lower edge in red and the front view and Figure 1 on which I have drawn the visor section in with a red line. Now produced and shown to me and marked with the letter "PKB1" and exhibited hereto are the said drawings. 16. It is also my view that the ribbing and the apertures as incorporated in the Registered Design are important features to the eye and these have clearly been reproduced in the Taiwanese helmet." On the other hand, the respondents adduced evidence from Mr A.K. Russell, the Associate Professor and Head of Department of Design at Curtin University of Technology in Western Australia. Mr Russell emphasized the differences which he discerned between a helmet made in conformity with Registered Design No. 88484 ("the Stackhat") and a helmet made by Tong Ho Hsing ("the 'Flying Horse' helmet") which he suggested "are fundamentally different in shape and visual appearance in a number of substantial respects". The utility of Mr Russell's evidence may have been reduced somewhat because he had regard, in making his comparison, not only to the representations in Registered Design No. 88484 and the "Flying Horse" helmet itself, but also to representative drawings of the latter helmet, and comparative measurements of the two helmets made by Mr E.F. Allan, a technical draftsman. In addition Mr Russell had regard to photographs of school-aged children wearing each of the "Stackhat", the "Flying Horse" helmet and a helmet produced by another manufacturer and sold under the name "Hartop". Mr Russell summarised the difference in basic form between the "Stackhat" and the "Flying Horse" helmet as follows:- " (i) The '*Stackhat' has a distinctly lower, flatter or 'squared-off' overall visual profile which gives it the appearance, when worn, of being on 'top of' the head. In contrast, the 'Flying Horse' helmet is of a significantly more rounded or 'head-hugging' form. (ii) This appearance is further emphasised by its use of an integrated visor which increases the visually apparent frontal surface area of the helmet and results in obscuring much of the wearer's upper face." Mr Russell also noted the following differences in what he called "accommodation of the ears" provided by the two helmets:- "The 'Stackhat' makes a positive provision, which is visually apparent, for accommodating the ears of the wearer by means of substantial cut-outs which appear on either side of the lower shell of the helmet. The 'Flying Horse' helmet, in contrast, allows the lower edge of the helmet rim to flow smoothly from the mid-lower point of the visor at the front to the back of the helmet with a gradual - upward curve over the normal position of the ears. The conclusion in respect of accommodation of the ears is supported by reference to not only the helmets themselves but in particular their use on school age children as is demonstrated in Exhibit 'AKR7' and in particular photographs 3, 4 and 5. This aspect of difference between the two helmets is further emphasised when considering the representative drawings prepared by Mr. Allan and seen in Exhibit 'EPA2' and in particular Figure 2 and comparing this to Figure 2 in Exhibit 'GRP1i' to Mr. Pryor's first affidavit." Next Mr Russell relevantly described the differences which he discerned between the chin strap design and arrangement of the two helmets by observing:- "The 'Stackhat' uses a single chin strap which is not fixed directly to the shell of the helmet but attaches to a separate 'U' shaped yoke. This yoke in turn 1s fixed by large bright metal rivets to each side of the distinctive cut-out detail for the ears as detailed in paragraph 3 sub-paragraph 2.1 of my report which appears on page 9 of same. The straps are secured under the chin by simple toggle or slip-ring. In contrast, the 'Flying Horse' helmet employs a distinctive two piece strap which is secured directly to the lower rim of the helmet in direct visual contrast to the device used in the 'Stackhat' as explained above." Then after comparing the "vents, ribs and recessed bands" on the two helmets, Mr Russell opined that "it is clear that whilst there is a considerable degree of Similarity in the design of the 'Stackhat' and 'Flying Horse' ventilation systems they are in fact the subject of many actual differences in the size and proportion of the -10- apertures and in the depth and angle of the ribs where they help form the grilles on the top and rear of the helmet." On the basis of a review of the prior art Mr Russell opined that "the prior art with regard to ventilation holes and methods of venting so as to allow escape of heated air is so wide and generally known and used in such a vast array of applications throughout industry that I am of the opinion that the degree of novelty or originality in respect of the manner of use of the venting in the 'Stackhat' design must be considered as being within an extremely small compass." Also included in Mr Russell's affidavit was some hearsay evidence that the "Flying Horse" helmet designated "T-16" by its manufacturer, Tong Ho Hsing, evolved from an earlier model "T-12" which, Mr Russell said he had been told, had been produced by Tong Ho Hsing since 1977. Mr Russell then went on to say:- "The addition of the ventilation holes in the T-16 'Flying Horse' helmet is, in my opinion, an incorporation of the general idea for such ventilation methods which was clearly drawn from prior art and which art includes the 'Stackhat' design." After referring to a general acceptance that the helmets must be designed to transfer heat from the head, Mr Russell reiterated that the degree of novelty or originality that could be said to attach to a ventilation system such as is used in either the "Stackhat" or "Flying Horse" helmets exists within a very small compass indeed. He then concluded:- -i11- "A further consideration limiting the compass is the fact that a designer must not include a ventilation system which achieves the purpose at the expense of the integrity of the helmet's structure. The designer also needs to take into account the desirability of maintaining a visually attractive presentation. These restrictions as well as the Australian Standard Association's and taking into account the prior art, result, in my opinion, in there being a very limited number of ways of achieving adequate ventilation." The expert evidence has been useful in indicating points of difference and similarity between the registered design and the allegedly infringing helmet and ensuring that none of those points has been overlooked. However, I find it unnecessary to forma preference for one expression of expert opinion over the other. As Lockhart J. pointed out in Firmagroup Australia Pty Ltd v Byrne & Davidson Doors (Vic) Pty Ltd (1986) 67 A.L.R. 29 at 37:- "It is for the court to determine the meaning of a design in any proceedings under the Designs Act whether the central question be the meaning of the design, novelty or infringement. Some designs are simple so that the court needs no expert assistance to interpret them. Other designs are complex and judges require technical assistance to understand them. Such evidence is plainly admissible but ultimately it is for the court to rule on the meaning of a design. Similarly, the understanding and interpretation of prior art may call for expert assistance to be provided to the court for similar reasons. On the other hand, prior art may be a fairly simple matter in a particular case, requiring little or no technical evidence." In my view it needs little or no technical evidence to acknowledge that the scope for novelty of design of a safety helmet is severely constrained by the purpose to which the ~12- article is to be put and the essential requirement that it fit and protect the human head. Within those constraints one design can differ from another principally in the extent, beyond the functional minimum, to which the head is covered, the shape and collocation of apertures to _ provide ventilation, and in matters of ornamentation which do not affect the function of the article. There 1s substantial identity between the location and dimensions of the ribbed channels on the two helmets in this case and in the size, number and location of the vents let into those channels. However, Rosebank has chosen by its statement of monopoly to obtain the protection of the Designs Act 1906 for "The design applicable to the shape or configuration of a helmet as illustrated in the accompanying representations". It has not elected, as the definition of "statement of monopoly" in s.4 of the Designs Act permitted it to do, to confine the statement to particular features of its design such as the ribbed channels and the configuration of the apertures for ventilation. Nor has it indicated, as paragraph (b) of the definition of "statement of monopoly" contemplates it might have, any of those features of the representations of the helmet to which its design has been applied "that are to be disregarded in considering the extent of the monopoly protection". Those considerations in combination with the absence of a statement of novelty have the effect, as Jacobs J observed -~13- in D. Sebel & Co. Ltd. v. National Art Metal Co. Pty. Ltd. (1965) 10 F.L.R. 224 at 228:- "chat it is necessary to regard each article as a whole and see whether there is a substantial identity between them. '...the application for the design in suit did not include any statement of the alleged novel features in respect of which protection was claimed, and the registered proprietors were not in consequence fettered in their submissions as to the particular features of this chair which should be had in mind when the ambit of the copyright monopoly was being considered. The absence of any such indication of novelty, whilst opening the door to that freedom, at the same time opens it equally widely to attack because an alleged infringer although he may adopt some of the features of the design may point to respects in which the alleged infringing object differs in shape or configuration, and suggests that such differences, not individually or in _ sun, constitute such a difference as to alter the design as a matter of substance' (W. pusty & Sons Ltd. v. Morris Wilkinson & Co. (Nottingham) Ltd. (1954) 71 R.P.c. 174, at pp. 179, 180. The applicants, for the purpose of the present claim for interlocutory relief, have confined themselves to contending that the helmet manufactured by Tong Ho Hsing is an obvious imitation of Registered Design No. 88484. Accordingly the Court must be satisfied that there is a serious question to be tried whether a visual comparison of the alleged infringing article and the registered design, each viewed as a whole, establishes that the former is "a copy (of the registered design) apparent to the eye notwithstanding slight differences"; see Malleys Ltd. v J.W. Tomlin Pty. Ltd. (1961) 35 A.L.J.R. 352 at 354. -~14- The question was similarly identified, although in somewhat different terms, by Lockhart J in the following passage from Firmagroup Australia Pty Ltd v Byrne & Davidson Doors (Vic) Pty Ltd (supra) at 40:- "To constitute direct infringement the essential features of the registered design must be applied to the accused design. It is not necessary that all features be taken; minor or inessential features need not be taken: Grafton v_ Watson (1884) 51 LT (NS) 141 at 144. The accused design must be in essence the same as the registered design and must have all its salient features." I have examined the drawings accompanying' the registered design instructed by an examination of a helmet made by Rosebank in conformity with that design. I have also examined with similar care the design of the allegedly infringing helmet as embodied in two examples of the helmet itself, and have had the advantage of drawings by each of Mr Bayly and Mr Allan claimed to embody that design. Upon comparing in the light of those examinations, the allegedly infringing helmet as a whole with the registered design as a whole, I am left with the overall impression that it is not an obvious copy of the registered design, although it does incorporate one of its salient features, the sweep of ribbed channelling from the front and across the top of the helmet to provide three sets of strategically-placed ventilating apertures. Identity in one such salient feature is not sufficient to constitute obvious, as distinct from fraudulent, infringement. As Neville J concluded in Sacket and Barnes v. Clozenberg (1909) 27 R.P.C. 104 at 107:- ~15- "On the one hand it was argued that to copy any important feature of a registered Design is a fraudulent imitation of the Design within the meaning of the Act of 1883. On the other hand it was argued upon the authority of Holdsworth v. McCrea (L.R. 2 H.L. 380) that no protection is given to any part of the Design but only to the Design as a whole and that it is not illegal, and therefore not fraudulent, to copy any part or parts of a registered Design so long as the resulting Design is not substantially identical with it, and that there being nothing in the present registration to distinguish between old and new, if any part of the Design is protected every part must be, including the carcase, and the carcase of the sideboard in the Defendant's registered Design No. 511,326 being proved to be old the registration must be bad. I have not been referred to any authority for the proposition that part of a Design is protected where the whole is registered, while Holdsworth v. M'Crea (ubi_ supra) and Thom v. Syddall (ubi Supra) lay down the contrary. (See Barran v. Lomas, ubi supra.) It appears to me that if it is desired to protect a particular feature in the general design of a sideboard it must under the Act of 1883 be registered or claimed separately. The issue in the present case therefore presents itself thus:- Are the sideboards of the Plaintiffs imitations of the Defendant's Designs? To which must I answer, No. They contain imitations of parts of them but the general designs are distinct." It might be thought that the anxious consideration and detailed examination which I found it necessary to undertake before reaching the conclusion which I have just indicated demonstrates that the applicants have raised a _ serious question to be tried. However, as I have already said, the issue of obvious infringement is one to be resolved by the Court on the basis of a visual comparison. That resolution at the trial is unlikely to be assisted by evidence signifiantly different from or additional to that which is presently before the Court. Accordingly, I consider that the - 16 - firm conclusion to which I have come negatives the existence of a serious question to be tried as to that issue. In my view, the observations of Barwick C.J. in General Steel Industries Inc. v Commissioner for Railways (N.S.W.) (1964) 112 C.L.R. 125 at 130 on the principles applicable to the jurisdiction to strike out a pleading which does not disclose a reasonable cause of action may be paraphrased to apply to the identification of a serious issue to be tried in a case like the present. His Honour there said:- "Although I can agree with Latham C.J. [in Dey v Victorian Railways Commissioners (1949) 78 C.L.R. 62, at p. 84] when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is umnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed." The only conduct or representations of the respondents which have been pointed to by the applicants as contravening s.52 or s.53 of the Trade Practices Act, have been involved in the promotion and offering for sale of helmets manufactured by Tong Ho Hsing. There is evidence that those helmets have been marketed under the name "Flying Horse" in cardboard boxes having colours, artwork and descriptive words very similar to those on the boxes in which the "Stackhats" manufactured by the applicants are distributed. However Mr -17- Chernov, Q.C., who appeared with Mrs Crennan for the applicants, disclaimed any reliance, for the purpose of the present claim for interlocutory relief, on that similarity. Nor did counsel for the applicants seek to make anything of the striking similarity in colour between the pink helmet in the "Flying Horse" range and the pink "Stackhat". As well as the differences in design, to which I have already referred, between the "Stackhat" and the helmet manufactured by Tong Ho Hsing, there is also a significant difference in the trade marks or brand names exhibited by the two helmets. The applicants' article has the words "Rosebank Stackhat" moulded in raised lettering as part of the depressed panel between the front vents. Some of the helmets manufactured by Tong Ho Hsing, by contrast, have adhesive transfers bearing the words "Flying Horse" in several stylized arrangements affixed to the front and back of the helmet. I infer that the helmets distributed by the second-named respondent have similar transfers bearing the legend "Southern Cross". There is no evidence that any actual or potential purchaser of safety helmets has been misled or deceived into believing that the article manufactured by Tong Ho Hsing is a "Stackhat" or is manufactured or distributed by either of the applicants. Such evidence as there is at present tends to suggest a sharp distinction between the two helmets has been established in the relevant market by reason of the much lower retail price of the Tong Ho Hsing helmet and the different licence issued in respect of it by the Australian Standards Association. Accordingly, because of the conclusion which I have reached - 18 - on the claim for obvious infringement of the Rosebank's registered design, it follows that I cannot identify a serious question to be tried arising from the claims under the Trade Practices Act. No act of passing off has been suggested by the applicants to have been constituted by any conduct of the respondents distinct from that alleged to contravene s.52 or s.53 of the Trade Practices Act. An interlocutory injunction pending the determination of that cause of action must therefore be similarly refused. If I were wrong in holding that no serious question to be tried has been demonstrated in any of the ways contended for by the applicants, I would consider the balance of convenience to be against the grant of interlocutory relief. Factors which would tend to that conclusion include the undertaking offered by the respondents to keep an account of all sales of helmets made by them until the hearing and determination of the action and the assurance that the Court can give that such hearing and determination at first instance can occur with the co-operation of the parties within 4 months. I would also be influenced in weighing the balance of convenience by my perception or evaluation of the strength of the applicants' case on obvious infringement; (see Castlemaine Tooheys Ltd v South Australia (1986) 60 A.L.J.R. 679 at 682).