Melhero Pty Ltd & Anor v Club X Pty Ltd & Ors [1996] FCA 15

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) No NG 963 of 1995 GENERAL DIVISION )

BETWEEN:

MELHERO PTY LIMITED (ACN 055 880 469) First Applicant

AND: MITCHELL PRODUCTS PTY LIMITED (ACN 053 664 010) Second Applicant

AND: CLUB X PTY LIMITED (ACN 006 864 688) First Respondent

AND: WALTER DELL PTY LIMITED (ACN 006 046 117) Second Respondent

AND: ASHWOOD WAY PTY LIMITED (ACN 005 757 942) Third Respondent

AND: SHAFT THEATRES PTY LIMITED (ACN 005 354 414) Fourth Respondent

CORAM: Lindgren J PLACE: Sydney DATE: 15 January 1996

REASONS FOR JUDGMENT

INTRODUCTION:

In this matter the commercial issue between the parties is whether the name "Adam & Eve" should be able to be used by only one or the other of them pending the final hearing of the proceedings. The application was filed on 20 December 1995 and there were directions given to enable short service. The application was made returnable on 22 December 1995. The proceedings were touched by an element of urgency. The hearing took place on 9 January 1996 and occupied the full day. The urgency arose from the fact that the applicants proposed to open a shop under the name "Adam & Eve" as from the end of January 1996 at 159 Oxford Street, Sydney.

The applicants The applicant companies are associated with Mr Mark Franks of Los Angeles. The first applicant ("Melhero") operates an adult entertainment and products store under the name "Adam & Eve" at 125 Gladstone Street, Fyshwick in the Australian Capital Territory and has done so since January 1993. The second applicant ("Mitchell") also operates such a store which has been referred to as "Adam & Eve 2" at 32 Grimwade Street, Mitchell in the Australian Capital Territory and has done so since June 1995.