Unilever Australia Limited v P. B. Foods Limited [2000] FCA 798

FEDERAL COURT OF AUSTRALIA

Unilever Australia Limited v PB Foods Limited [2000] FCA 798 PRACTICE AND PROCEDURE – trade marks – substituted service of originating process – prima facie case – evidence of authorised use – joint tortfeasors – whether personal service in United Kingdom impractical – discretion to order substituted service

Federal Court Rules O 7 r 9, O 8 r 2 Trade Marks Act 1995 (Cth) ss 120, 122(1)(f)

Ramset Fasteners (Aust) Pty Ltd v Advanced Building Systems Pty Ltd (1999) 44 IPR 481 referred to King v Milpurrurru (1996) 66 FCR 474 referred to Mercator Property Consultants Pty Ltd v Christmas Island Resorts Pty Ltd (R D Nicholson J, 14 July 1998, unreported) referred to

Cornish, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights (2nd edition) par 2-003 Kerly's Law of Trade Marks and Trade Names (12th edition) page 297, par 16 UNILEVER AUSTRALIA LIMITED (ACN 004 050 828) v PB FOODS LIMITED (ACN 008 668 602) AND CADBURY LIMITED N 287 OF 1999

MOORE J 16 JUNE 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 287 OF 1999

BETWEEN: UNILEVER AUSTRALIA LIMITED

(ACN 004 050 828)

APPLICANT

AND: PB FOODS LIMITED

(ACN 008 668 602)

FIRST RESPONDENT

CADBURY LIMITED

SECOND RESPONDENT

JUDGE: MOORE J

DATE OF ORDER: 16 JUNE 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. To the extent that leave is now necessary, Unilever Australia Limited be given leave to amend its statement of claim in the form filed in court on 23 May 2000.

2. Cadbury Limited's notice of motion to set aside the orders made under O 8 r 2 and O 7 r 9 of the Federal Court Rules is dismissed.

3. Unilever Australia Limited pay the costs of Cadbury Limited of the motion prior to the hearing on 23 May 2000.