Reidy's Lures Pty Ltd v Basser Millyard Pty Ltd [2003] FCA 1242

FEDERAL COURT OF AUSTRALIA

Reidy's Lures Pty Ltd v Basser Millyard Pty Ltd [2003] FCA 1242 REIDY'S LURES PTY LTD (ACN 082 216 386) v BASSER MILLYARD PTY LTD (ACN 000 114 983) & SUPERFLEX PTY LTD (ACN 000 114 992) D 8 of 2003 MANSFIELD J 31 OCTOBER 2003 DARWIN

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY D 8 OF 2003

BETWEEN: REIDY'S LURES PTY LTD (ACN 082 216 386)

APPLICANT

AND: BASSER MILLYARD PTY LTD (ACN 000 114 983)

FIRST RESPONDENT

SUPERFLEX PTY LTD (ACN 000 114 992)

SECOND RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 31 OCTOBER 2003

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The respondents, and each of them by themselves, their directors, officers, servants and agents or otherwise howsoever, are hereby restrained from: 1.1 Causing to be manufactured, keep for sale, advertise, supply, distribute or sell the product Smilin' Jack's B52, the subject of the complaint ('the Product'); 1.2 Causing to be manufactured, keep for sale, advertise, supply, distribute or sell lures under the name 'B52' or by reference to any name, word or mark substantially identical or deceptively or misleadingly similar thereto; 1.3 Causing to be manufactured, keep for sale, advertise, supply, distribute, or sell any product produced from the mould from which the Product has been produced or from any mould which is substantially identical or deceptively or misleadingly similar thereto; 1.4 Representing in the course of trade or commerce in connection with the supply or possible supply or in connection with the promotion by any means of the supply or use of any articles of lures or other goods; (i) that any such goods, not of the manufacture of or sold or approved by the applicant, have the sponsorship or approval of the applicant; (ii) That the respondents or any business of the respondents or either of them has the sponsorship or approval of the applicant or is affiliated with the applicant. 2. The respondents, each of them by themselves, their directors, officers, servants and agents or otherwise howsoever, will forward correspondence asking that the Chinese owners of the mould to mill the mould so that the Product cannot be manufactured. 3. The respondents pay to the Applicant the sum of $4,200.00. 4. The respondents, each of them by themselves, their directors, officers, servants and agents or otherwise howsoever, will jointly within 14 days of this order, place one corrective advertisement in both The Fishing World and Australian Fishing Tackle Retailer publications to read as follows: 'Smilin' Jack's B52 lure has been withdrawn from sale. Smilin' Jack's B52 lures were not manufactured or sold or approved by Reidy's Lures nor had the sponsorship or approval of Reidy's Lures. Basser Millyard Pty Limited and Superflex Pty Limited do not have the sponsorship or approval of Reidy's Lures and Reidy's Lures is not affiliated with Basser Millyard and Superflex'. 5. The respondents, each of them by themselves, their directors, officers, servants, agents or otherwise howsoever, will within 14 days of this order cancel or deregister trademark 925971 as owned by the second respondent registered from 4 September, 2002 as 'Smilin' Jack's B52'. 6. The respondents pay the applicant costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.