Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Unilever Australia Ltd v PB Foods Ltd [1999] FCA 1083
PRACTICE AND PROCEDURE – application to strike out defence – applicant alleges infringement of trade marks and respondent raises defence that infringing marks would be registered if application made – whether defence is hopeless having regard to terms of s 122(1) of the Trade Marks Act 1995 (Cth)-whether defence available to authorised user or owner of mark or whether prior refusal of application for registration of infringing mark denies defence in s 122(1)(f). Trade Marks Act 1995 Cth s 122(1)(f) Federal Court Rules 1978 (Cth) O 11 r 16 UNILEVER AUSTRALIA LTD v PB FOODS LTD N 287 OF 1999 MOORE J SYDNEY 12 AUGUST 1999
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N 287 OF 1999
BETWEEN: UNILEVER AUSTRALIA LTD
Applicant
AND: PB FOODS LTD
Respondent JUDGE: MOORE J
DATE OF ORDER: 12 AUGUST 1999
WHERE MADE: SYDNEY
THE COURT ORDERS THAT: (1) The notice of motion is dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N 287 OF 1999
BETWEEN: UNILEVER AUSTRALIA LTD
Applicant
AND: PB FOODS LTD
Respondent
JUDGE: MOORE J
DATE: 12 AUGUST 1999
PLACE: SYDNEY
REASONS FOR JUDGMENT 1 On 8 April 1999 Unilever Australia Ltd ("Unilever") commenced proceedings under the Trade Marks Act 1995 (Cth) ("the 1995 Act") against PB Foods Ltd ("PB Foods"). Unilever is the proprietor in Australia of, relevantly, three registered trade marks registered in respect of specified goods; namely, ice cream, frozen confectionary and water ices ("the Unilever marks"). 2 In its statement of claim Unilever alleges that PB Foods has since at least 1998 used as a trade mark in Australia in relation to ice confections, three signs which are substantially identical with or deceptively similar to each of the Unilever marks. Unilever further alleges that PB Foods has infringed the Unilever marks in contravention of s 120 of the 1995 Act. In its application Unilever seeks injunctive relief, an order for delivery up and damages or an account of profits. 3 PB Foods filed a defence on 3 June 1999. The defence includes the following: 3 Alternatively, the Respondent says that it is using the signs depicted in annexures "A" and "B" to the Application ("the Cadbury signs") under authorisation from Cadbury Limited, which would obtain registration of the Cadbury signs as trademarks in its name in relation to goods including Ice Confections (as defined in the Statement of Claim) if it were to apply for registration.
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