Tooheys Pty Limited v Coopers Brewery Limited [2003] FCA 148

FEDERAL COURT OF AUSTRALIA

Tooheys Pty Limited v Coopers Brewery Limited [2003] FCA 148 INJUNCTION – Interlocutory injunction sought – respondent recently launched new range of draught and light beers – use of expressions "NEW DRAUGHT" and "NEW LIGHT" - applicant alleges respondent's use of word "NEW" is misleading and deceptive – evidence of substantial promotion by applicant of the word "NEW" in connection with its flagship beer – respondent seeking to inform consumers of its new beer products – respondent's intention to use the word "NEW" for limited time - whether serious question to be tried in respect of use of the word "NEW" - balance of convenience – evidence regarding hardship - whether balance of convenience warrants grant of interlocutory injunction Trade Practices Act 1974 (Cth) s 52 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 cited Trade Practices Commission v Santos Ltd (1992) 38 FCR 382 cited American Cyanamid Co v Ethicon Ltd [1975] 2 AC 396 referred to Twentieth Century Fox Film Corporation v The South Australian Brewery Co Ltd (1996) 66 FCR 451 referred to Oxford English Dictionary (2nd ed., 1989) TOOHEYS PTY LIMITED v COOPERS BREWERY LIMITED N 153 of 2003 TAMBERLIN J SYDNEY 7 MARCH 2003

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY 153 OF 2003

BETWEEN: TOOHEYS PTY LIMITED

(ACN 000 002 598)

APPLICANT

AND: COOPERS BREWERY LIMITED

(ACN 007 871 409)

RESPONDENT

JUDGE: TAMBERLIN J

DATE OF ORDER: 28 FEBRUARY 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application for interlocutory relief is dismissed. 2. Costs are reserved. 3. The parties address the issue of costs at the directions hearing on 21 March 2003. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.