Armor All Products Corporation v Selleys Chemical Company Pty Ltd [1997] FCA 1606

JUDGMENT No. £2.29. £220

IN THE FEDERAL COURT OF AUSTRALIA

) ) NEW SOUTH WALES DISTRICT REGISTRY ) No G 494 of 1997 ) )

GENERAL DIVISION

BETWEEN: ARMOR ALL PRODUCTS CORPORATION First Applicant ARMOR ALL PRODUCTS (AUST) PTY

LTD (ACN 069 201 163)

Second Applicant AND: SELLEYS CHEMICAL COMPANY PTY LIMITED (ACN 000 049 427) Respondent Coram: Davies J. Date: 11 July 1997 Place: Sydney REASONS FOR JUDGMENT

In these proceedings the applicants, Armor All Products Corporation of the United States and Armor All Products (Aust) Pty Limited, seek an interlocutory injunction against the respondent, Selleys Chemical Company Pty Limited. The applicants are the proprietors of car care products put out under the name "Armor All". In issue in these proceedings are a group of car care products called protectants which are designed for the protection of tyres, the fabric and the interior of cars and generally for protecting vehicles against the sun. In 1987, Selleys became the Australasian distributor of the Armor All protectants. It was not only the distributor but performed part of the task of bringing the ingredients together. The goods were described during this period of distribution as manufactured by Selleys.

A term of the user agreement between Armor All and Selleys was:-

"5, USER recognizes PROPRIETOR's ownership and title to the Trademarks as well as PROPRIETOR's ownership of any distinctive Jeatures of the packaging used in connection with the Trademarks and it is understood that throughout the term of this Agreement and thereafter, USER shall not contest the validity of the Trademarks, use the Trademarks as part of USER's name, claim adversely to PROPRIETOR any right, title, or interest in and to the Trademarks, or distinctive features of the packaging used in connection with the Trademarks and shall not register or apply to register the Trademarks or confusingly similar trademarks in the Territory or elsewhere."