Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
ACP Publishing Pty Ltd v Pan MacMillan Australia Pty Ltd [2000] FCA 1849
INJUNCTION – claim of misleading and deceptive conduct and passing off- respondent intending to publish book with similarities to booklets published by applicant – application for interlocutory injunction – although calculation of damages may be complex, not impossible – public interest against restraining publication of information except where necessary to do justice between parties – applicant's case apparently not of great strength – damages sufficient remedy. ACP PUBLISHING PTY LIMITED v PAN MACMILLAN AUSTRALIA PTY LIMITED N1260 of 2000
MADGWICK J 24 NOVEMBER 2000 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N1260 of 2000
BETWEEN: ACP PUBLISHING PTY LIMITED
APPLICANT
AND: PAN MACMILLAN AUSTRALIA PTY LIMITED
RESPONDENT
JUDGE: MADGWICK J
DATE OF ORDER: 24 NOVEMBER 2000
WHERE MADE: SYDNEY
THE COURT ORDERS THAT: 1. The applicant's application be dismissed. 2. Each party is to pay its own costs of the application.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N1260 of 2000
BETWEEN: ACP PUBLISHING PTY LIMITED
APPLICANT
AND: PAN MACMILLAN AUSTRALIA PTY LIMITED
RESPONDENT
JUDGE: MADGWICK J
DATE: 24 NOVEMBER 2000
PLACE: SYDNEY
REASONS FOR JUDGMENT (revised from transcript) HIS HONOUR: 1 In this case the applicant claims that the publication by the respondent of a book bearing the title "Jokes for Blokes" would constitute misleading and deceptive conduct or conduct that is likely to mislead and deceive in contravention of s 52 of the Trade Practices Act 1974 (Cth) ("the Act") or represented the respondent as having an affiliation that it does not have, in contravention of s 53D of the Act, and would constitute passing off. An interlocutory injunction is sought to restrain the imminent publication of the respondent's book. The applicant and the respondent are both well known and large publishers. 2 The applicant publishes "People" magazine that has a readership of about 200,000 per issue and a circulation of about a quarter of that. It is published weekly. There have been several issues published by the applicant of what one might call a booklet, on each occasion, described on the front cover as "People presents Jokes for Blokes" with the words "jokes" and "blokes" in large and colourful type-face. The covers of the several issues of "Jokes for Blokes" have included different cartoons, rather emphasising humour in bad taste. 3 "People" magazine has, one might say, taken the formula of page 3 of some afternoon papers to new heights. One can confidently say that its appeal is to those who in Australia are, often sardonically now, referred to as "blokes". Without access to a dictionary and
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