Barry Bowden Investments Pty Ltd v XOXOXO Trading Pty Ltd [2004] FCA 11

FEDERAL COURT OF AUSTRALIA

Barry Bowden Investments Pty Ltd v XOXOXO Trading Pty Ltd [2004] FCA 11 BARRY BOWDEN INVESTMENTS PTY LTD & ORS V XOXOXO TRADING PTY LTD & ORS V1129 OF 2003 HEEREY J 12 JANUARY 2004 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V1129 OF 2003

BETWEEN: BARRY BOWDEN INVESTMENTS PTY LTD and OTHERS

APPLICANTS

AND: XOXOXO TRADING PTY LTD and OTHERS

RESPONDENTS

JUDGE: HEEREY J

DATE OF ORDER: 12 JANUARY 2004

WHERE MADE: MELBOURNE

UPON THE APPLICANTS, by their Counsel, undertaking to the Court: (a) to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory order; and (b) to pay the compensation referred to in (a) to the person there referred to. THE COURT ORDERS THAT:- 1. Until further orders or the trial of this proceeding, the First, Second, Third, Fourth, Sixth, Seventh, Eighth, Ninth and Tenth Respondents by themselves, their servants or agents or any of them howsoever be restrained: (a) from reproducing, or substantially reproducing, the Copyright Materials as defined in the Second Amended Statement of Claim dated 12 January 2004 filed herein, or authorising such conduct; (b) from manufacturing, importing for sale, selling, or by way of trade, offering and/or exposing for sale, or exhibiting in public, the garments: (i) labelled "XOXOXO" with style number 59871; (ii) labelled "XOXOXO" with style number 28716; (iii) labelled "XOXOXO" with style number 28371 (iv) labelled "XOXOXO" with style number 28518; and (v) labelled "Drop Dead Gorgeous" with style number 28737. (c) from disposing of the garments listed in (b) above and any materials or documents used in their creation. 2. The First, Second, Third and Fourth Respondents, not later than 15 January 2004, write to all retailers to whom the garments listed in 1(b) above were sold, requesting that these garments be immediately removed from sale and be returned to the First, Second, Third and/or Fourth Respondents. 3. The Applicants' solicitors by their agents attempt to personally serve the Sixth, Seventh, Eighth, Ninth and Tenth Respondents with: (a) the Application dated 16 December 2003; (b) the Statement of Claim dated 16 December 2003; (c) the Certificate of Legal Representative dated 16 December 2003; (d) the Affidavits of Anthony Brooke Watson sworn 16 December 2003, 17 December 2003, 22 December 2003, 9 January 2004 and 12 January 2004; (e) the Second Amended Statement of Claim dated 12 January 2004; and (f) this order; prior to the next directions hearing of this proceeding. 4. Costs reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.