Suntory Ltd v Daiquiri Co Pty Ltd [2001] FCA 926

FEDERAL COURT OF AUSTRALIA

Suntory Ltd v Daiquiri Co Pty Ltd [2001] FCA 926 Bankruptcy Act 1966 (Cth) s58 SUNTORY LTD & ANOR v THE DAIQUIRI COMPANY PTY LTD & ORS N 1451 OF 2000 EMMETT J 17 JULY 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1451 OF 2000

BETWEEN: SUNTORY LIMITED

FIRST APPLICANT

SUNTORY (AUST) PTY LIMITED

(ABN 27 001 628 780)

SECOND APPLICANT

AND: THE DAIQUIRI COMPANY PTY LTD

(ACN 057 958 853)

FIRST RESPONDENT

ANDREW SEOUD trading as THE DAIQUIRI FACTORY

SECOND RESPONDENT

DAIQUIRIES DOWN UNDER PTY LIMITED

(ABN 44 092 329 881)

THIRD RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 17 JULY 2001

WHERE MADE: SYDNEY

THE COURT DECLARES THAT:

The second respondent has infringed registered trade mark no. 680413. THE COURT ORDERS nunc pro tunc THAT the notice of motion filed on 10 July 2001 be served on the second respondent by sending a copy thereof by prepaid post no later than 10 July 2001.

THE COURT ORDERS THAT:

1. The second respondent whether by himself, his servants, agents or otherwise be restrained from: (a) manufacturing; (b) causing or procuring the manufacture or sale of; (c) exporting out of Australia or importing into Australia; (d) distributing, supplying, selling or offering or exposing for sale; or (e) advertising or promoting any beverage or mixture of beverages under or by reference to the trade mark ILLUSION or any trade mark which is substantially identical or deceptively similar to the trade mark ILLUSION. 2. The second respondent within 14 days of service of these orders deliver up to the Court all containers, labels, signs, brochures, business cards, business letterhead and any other advertising or promotional material whatsoever in its possession, custody or control which use or apply the words ILLUSION or MIDORI ILLUSION or any other substantially identical or deceptively similar words. 3. The second respondent verify on oath that he has complied with Order 3 within 7 days of the date due for the delivery up to the Court required therein. 4. The second respondent pay the costs of these proceedings against him. 5. None of the above orders may be entered until seven days after written notice of the making of the orders has been given to the second respondent.