The Royal Automobile Club of Queensland Ltd v Dawe, William Frederick [1998] FCA 845

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 2 of 1998

BETWEEN: the royal automobile club of queensland limited

Applicant

AND: william frederick dawe

and: First Respondent

joyce elizabeth dawe

Second Respondent

william frederick dawe

first cross-claimant

joyce elizabeth dawe

second cross-claimant

the royal automobile club of queensland limited

cross-respondent

JUDGE: Cooper j

DATE OF ORDER: 29 may 1998

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. Pending the trial of these proceedings or further order of the court each of the first and second respondents be restrained: (a) from infringing the applicant's registered trade marks number A446634 and number A502701 a division of number 446634; (b) from engaging in conduct that is misleading and deceptive or likely to mislead or deceive in contravention of s 52 of the Trade Practices Act 1974 (Cth); and/or s 38 of the Fair Trading Act 1989 (Qld); and/or s 42 of the Fair Trading Act 1987 (NSW); (c) from representing that he or she has a sponsorship, approval or affiliation which he or she does not have, in contravention of s 53(d) of the Trade Practices Act 1974 (Cth); and/or s 40(f) of the Fair Trading Act 1989 (Qld); and/or s 44(f) of the Fair Trading Act 1987 (NSW); (d) from passing off any towing service as an authorised agency of the applicant; in each case by using or causing to be used, in any way, and whether spoken of, written or depicted, the acronym or initials "RACQ", alone or in combination with any other words, numerals or symbols, in relation to any business with which either of the respondents is associated. 2. Until the trial of these proceedings or further order of the court, each of the respondents themselves immediately answer, and each of the respondents cause any servant or agent of his or hers or theirs immediately to answer, any call taken by him or her on any of the telephone services numbers (07) 5524 5036, 0412 753636, 018 753636 in these terms: "This business is not connected in any way with the Royal Automobile Club of Queensland and does not and cannot provide any services on its behalf. May I help you." 3. Until the trial of these proceedings or further order of the court, the respondents within seven days cause a telephone message to be placed upon the telephone service number (07) 5524 5036, and keep connected to that service, a telephone message so that any person calling that number will first hear these words :- "This business is not connected in any way with the Royal Automobile Club of Queensland and does not and cannot provide any services on its behalf. If you still wish to deal with us please hold." 4. The first and second respondents, subject to any proper objection being taken, file and serve further and better particulars as requested in Clayton Utz' letter of 19 March 1998 with respect to paragraphs 13(d), (e), (f) and (g) of the defence and cross-claim by 4.00 pm on 12 June 1998, and in default of that paragraphs 13(d), (e), (f) and (g) of the defence and counter-claim be struck from the defence and that those claims in relief in consequence thereof be struck out. 5. The applicant file and serve any notice of motion and supporting material seeking relief under O 20 r 1 by 4.00 pm Wednesday 3 June 1998, such notice of motion to be listed for hearing at 10.15 am on 26 June 1998. 6. The respondents file and serve any material on the question of costs of the application for interlocutory relief by 4.00 pm on 12 June 1998, and the question of costs of and incidental to the application for interlocutory relief and in respect of the request for particulars be reserved for argument at 10.15 am on 26 June 1998. 7. The application be adjourned for further directions to 10.15 am on 26 June 1998. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.