Anheuser-Busch, Inc v Budejovický Budvar, Národní Podnik [2002] FCA 624

FEDERAL COURT OF AUSTRALIA

Anheuser-Busch, Inc v Budějovický Budvar, Národní Podnik [2002] FCA 624 COSTS – issues won and lost by both parties – 'losing' party not paying all costs of 'winning' party. Trade Marks Act 1995 (Cth) Trade Practices Act 1974 (Cth) Cretazzo v Lombardi (1975) 13 SASR 4 referred to Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201 referred to Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd (1993) 26 IPR 261 referred to Australian Trade Commission v Disktravel [2000] FCA 62 referred to Commissioner of Australian Federal Police v Razzi (No 2) (1991) 101 ALR 425 referred to Anheuser-Busch, Inc v Budějovický Budvar, Národní Podnik & Ors NG 194 of 1998 ALLSOP J 15 MAY 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 194 of 1998

BETWEEN: ANHEUSER-BUSCH, INC

APPLICANT

AND: BUDĚJOVICKÝ BUDVAR, NÁRODNÍ PODNIK

FIRST RESPONDENT

F.M. LIQUOR PTY LTD ACN 009 350 378

SECOND RESPONDENT

HOUSE OF HOPS (AUST) PTY LTD ACN 072 644 341

THIRD RESPONDENT

JUDGE: ALLSOP J

DATE OF ORDER: 15 MAY 2002

WHERE MADE: SYDNEY

THE COURT: 1. DECLARES that the first respondent has, by distributing, offering for sale and selling in Australia beer packaged in containers bearing a front label displaying, on a band on that label, the words BUDWEISER BUDVAR, examples of which are Exhibits GRB 11 and GRB 12 (also being Exhibits TH 10 and TH 11) in these proceedings: (a) infringed Registered Trade Marks No 163032 BUDWEISER and No 366841 BUDWEISER KING OF BEERS; (b) engaged in conduct which contravenes ss 52, 53(c) and 53(d) of the Trade Practices Act 1974 (Cth); and (c) engaged in conduct which constitutes passing-off. 2. ORDERS that the first respondent, whether by itself, its servants and agents, be restrained from: (a) importing, advertising, promoting, distributing, offering for sale or selling in Australia beer packaged in containers bearing labels displaying the words BUDWEISER BUDVAR, examples of which are Exhibits GRB 11 and GRB 12 (also being Exhibits TH 10 and TH 11) in these proceedings; (b) importing, advertising, promoting, distributing, offering for sale or selling in Australia beer packaged in containers bearing the label which is Exhibit TH 101 in these proceedings; (c) promoting or advertising beer in Australia by means of invoices in the form of Exhibit TH 7 in these proceedings, or by means of other stationery with a border in the form of or substantially in the form of the invoice, a copy of which is Exhibit TH 7 in these proceedings, or by means of the point of sale material found within a catalogue, an example of which is Exhibit TH 12 in these proceedings. 3. NOTES the permanent undertaking to the Court by the first respondent, without admissions, that it will not, whether by itself, its servants and agents, without the licence of the applicant: (a) export to Australia or sell, offer for sale, distribute, promote or advertise in Australia, beer in packaging under the mark BUDWEISER BUDVAR, examples of which are Exhibits GRB 6, GRB 7, WLM 5 and NRS 7 or any point of sale or other promotional materials to be used in marketing beer in such packaging; or (b) knowingly assist or authorise any person to import beer in such packaging into Australia or to sell, offer for sale, distribute, promote or advertise such beer in Australia. 4. ORDERS that the first respondent's Amended Cross-Claim be dismissed. 5. ORDERS that the proceedings be otherwise dismissed. 6. ORDERS that the first respondent pay seventy per cent (70%) of the costs of the applicant of the whole proceedings. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.