Caterpillar Inc & Anor v Sun Forward Pty Ltd (ACN 064 840 115) [1996] FCA 983

CATCHWORDS SUMMARY JUDGMENT - application for summary judgment under O 20 r 1 in respect of the applicants' claims against the respondent for infringement of its trade mark in respect of Caterpillar "Logger" boots; infringement of its copyright in a bulldozer device stamped on the heel of the boots; passing off of the respondent's "GAT-TANK" footwear for Caterpillar footwear and misleading and deceptive conduct. SUMMARY JUDGMENT - trade mark infringement - inappropriate to grant application for summary judgment having regard to factual conflict as to origin of boots the subject of complaint which is not able to be resolved on the affidavit material and complex questions of construction of Trade Marks Act 1995 (Cth). SUMMARY JUDGMENT - copyright infringement - whether the respondent had the requisite knowledge, for the purposes of s 37 the Copyright Act 1968 (Cth), that importation into Australia for the purpose of trade of Caterpillar boots bearing the applicants' bulldozer device would infringe the applicants' copyright. SUMMARY JUDGMENT - passing off - applicants establish reputation in words "CAT" and "Caterpillar" as applied to footwear - whether respondent's "GAT-TANK" footwear likely to be associated with the applicants' "CAT" footwear - clear inference that similar get-up adopted deliberately to falsely create impression "GAT" shoe associated with the applicants' footwear - registration of "GAT-TANK" as a trade mark no bar to a claim of passing off. SUMMARY JUDGMENT - approach to be taken by the Court - text of O 20 r 1 not to be fettered by restrictions applicable to traditional summary judgment rules - relevance of case management system provided for by O 10 - O 20 r 1 not an alternative to trial, but rather an expeditious means of resolving litigation where an applicant can clearly demonstrate there is no real defence to the claims made by it - whether appropriate for Court to give summary judgment in respect of part of a case, when other causes of action are only suitable to be resolved by trial. Federal Court Rules - O 10, O 20 r 1 Copyright Act 1968 (Cth) - s 37 Trade Marks Act 1995 (Cth) - ss 120, 123 Trade Practices Act 1974 (Cth) - ss 52, 53