Federal Court of Australia
FEDERAL COURT OF AUSTRALIA COPYRIGHT - infringement - interlocutory injunction - whether two-dimensional pattern on the external surface of a prototype is a work of artistic craftsmanship - whether prototype sufficiently original to support claim for copyright PASSING OFF - elements of - whether respondent's logo and packaging sufficiently distinguishes the respondent's products from the applicant's products TRADE PRACTICES - misleading and deceptive conduct - protection of the public to be considered in granting injunctions Copyright Act 1968 (Cth) ss 10, 32, 35 Trade Practices Act 1974 (Cth) s 52(1) American Cyanamid Co v Ethicon Ltd [1975] FSR 101 referred to Boots & Co Ltd v Approved Prescription Services Ltd [1988] FSR 45 considered Burke & Anor v Spicers Dress Designs [1936] 1 Ch 400 discussed Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 referred to Cuisenaire v Reed [1963] VR 718 referred to Dillworth v Commissioner of Stamps [1899] AC 99 referred to Erven Warnik v VVJ Townsend & Sons (Hull) Ltd [1980]RPC 31 applied George Hensher Ltd v Restawhile Upholstery (Lancs) Ltd [1975] RPC 31 considered NWL Ltd v Woods [1979] 1 WLR 1294 discussed Radley Gowns Ltd v Kostas Spyrou [1975] FSR 455 referred to Reckitt & Colman Products Ltd v Barden Inc [1990] RPC 341 applied UNITED PACIFIC INDUSTRIES PTY LTD v MADISON SPORTS PTY LTD & ORS VG169 of 1998 FINKELSTEIN J MELBOURNE 2 JUNE 1998
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY VG 169 of 1998
BETWEEN: UNITED PACIFIC INDUSTRIES PTY LTD
Applicant
AND: MADISON SPORTS PTY LTD
TREVOR VICTOR HOHNS and
BRIAN DAVID CARMODY
Respondents
JUDGE: FINKELSTEIN J
DATE OF ORDER: 2 JUNE 1998
WHERE MADE: MELBOURNE
THE COURT ORDERS THAT: Upon the applicant and the applicant's director, Maurice John Callinan each undertaking to pay to any party adversely affected by the interlocutory injunction such compensation (if any) as the Court thinks just, in such manner as the Court directs: 1. Until the trial of this proceeding or further order the first respondent, whether by itself, its directors, officers, servants or agents or otherwise howsoever, be forthwith restrained from promoting, offering for sale and selling those of its products which have the get up of the applicant's Blue Thermoskin range of heat retainer products exemplified by exhibits MJC 30 to MJC 38 of the affidavit of Maurice John Callinan sworn 6 May 1998. 2. The costs of the application be reserved. Note : Settlement and entry of orders are dealt with in Order 36 of the Federal Court Rules
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