Perfection Fresh Aust Pty Ltd v Top Class Fruit Supply Pty Ltd [2002] FCA 1636

FEDERAL COURT OF AUSTRALIA

Perfection Fresh Aust Pty Ltd v Top Class Fruit Supply Pty Ltd [2002] FCA 1636

TRADE MARKS – application for interlocutory injunction pending final hearing – whether expression "grape tomatoes" had been used by applicant as a trade mark or as a description – whether serious question to be tried – balance of convenience – delay in commencement of proceeding – factors taken together and considered as a whole leading to a refusal of interlocutory relief.

PERFECTION FRESH AUSTRALIA PTY LIMITED (ACN 001 652 544) v

TOP CLASS FRUIT SUPPLY PTY LIMITED (ACN 059 184 511) & ANOR N 1361 OF 2002 LINDGREN J 24 DECEMBER 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1361 OF 2002

BETWEEN: PERFECTION FRESH AUSTRALIA PTY LIMITED

(ACN 001 652 544)

APPLICANT

AND: TOP CLASS FRUIT SUPPLY PTY LIMITED

(ACN 059 184 511)

FIRST RESPONDENT

TONY CHIEFARI

SECOND RESPONDENT JUDGE: LINDGREN J

DATE OF ORDER: 24 DECEMBER 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Upon the respondents' undertaking to the applicant and to the Court, until further order, to make, to keep, and, subject to any confidentiality order that may be made, to produce for inspection by or on behalf of the applicant upon reasonable request by it, records of all purchases and sales of tomatoes by reference to any name being or including the words "grape tomatoes" or "grape tomato", including date, price, quantity and identity of seller or buyer, the interlocutory relief sought in the application be refused. 2. Until further order, any inspection referred to in Order 1 be by the applicant's counsel and external solicitors. 3. The costs of the application for interlocutory relief be reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.