Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
interlocutory injunctions - whether there is a serious question of trade mark infringement to be tried - whether there is a serious question to be tried as to whether the shape of the respondent's product is substantially identical with, or deceptively similar to, the applicant's mark and whether the shape is decorative or functional - whether there is a serious question to be tried as to whether the respondent has breached s 52 or s 53 of the Trade Practices Act 1974 or engaged in passing off by selling a product similar to the product of the applicant but which is clearly marked with the respondent's trade mark - whether there is a serious question to be tried as to whether the respondent has infringed the applicant's monopoly in its registered design - whether the respondent's product represents the application of an imitation of the "new combination of known features" represented by the registered design - balance of convenience - delay - question of infringement of s 46 of the Trade Practices Act.
Trade Practices Act 1974, s 52, s 53, s 46
Trade Marks Act 1955, s 120
Designs Act, s 30(1)(b), s 30(1)(c)
Rolls-Royce Motors Ltd v DIA (Engineering) Pty Ltd (1981) 50 FLR 340, discussed Re Applications by Coca-Cola Company (1985) 3 IPR 575, referred to Smith Kline and French Laboratories (Australia) Ltd v Registrar of Trade Marks (1967) 116 CLR 628, referred to Epitoma Pty Ltd v Australasian Meat Industry Employees' Union (No 2) (1984) 3 FCR 55, applied American Cyanamid v Ethicon Ltd [1975] AC 396, referred to Bullock v The Federated Furnishing Trades Society of Australasia (1995) 5 FCR 464, referred to Telstra Corporation Ltd v Optus Communications Pty Ltd (1996) 36 IPR 515, referred to Boots Company (Australia) Pty Ltd v Smith Kline Beecham Healthcare Pty Ltd (1995) 33 IPR 266, referred to Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191, discussed and applied Reckitt and Coleman Products Ltd v Borden Inc (1990) 1 WLR 491, discussed William Edge & Sons Ltd v William Niccolls & Sons Ltd [1911] AC 693, discussed Malleys Ltd v J W Tomlin Pty Ltd (1961) 180 CLR, applied Firmagroup Australia Pty Ltd v Byrne & Davidson Doors (Vic) Pty Ltd (1987) 180 CLR 483, referred to Dart Industries Inc v Decor Corporation Pty Ltd (1989) 15 IPR 403, discussed Carlton and United Breweries (NSW) Pty Ltd v Bond Brewing (New South Wales) Ltd (1987) 76 ALR 633, referred to
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