Tao Ti Co Pty Limited v A & T Evergood Pty Limited [2004] FCA 41

FEDERAL COURT OF AUSTRALIA

Tao Ti Co Pty Limited v A & T Evergood Pty Limited [2004] FCA 41 TAO TI CO PTY LIMITED (ACN 075 542 915) v A & T EVERGOOD PTY LIMITED (ACN 085 909 342) N 1513 OF 2003 ALLSOP J 30 JANUARY 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1513 of 2003

BETWEEN: TAO TI CO PTY LIMITED

(ACN 075 542 915)

APPLICANT

AND: A & T EVERGOOD PTY LIMITED (ACN 085 909 342)

RESPONDENT

JUDGE: ALLSOP J

DATE OF ORDER: 30 JANUARY 2004

WHERE MADE: SYDNEY

THE COURT: 1. The respondent pay the applicant's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1513 of 2003

BETWEEN: TAO TI CO PTY LIMITED

(ACN 075 542 915)

APPLICANT

AND: A & T EVERGOOD PTY LIMITED (ACN 085 909 342)

RESPONDENT

JUDGE: ALLSOP J

DATE: 30 JANUARY 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT

1 On 9 December 2003 I made declarations and orders in connection with the infringement of a trade mark, number 670405 which had been committed by the respondent. The respondent was not present on 9 December and I made directions for the filing of evidence and submissions on costs. Mr Lee of the applicant's solicitors has filed an affidavit no aspect of which has been contested. It is clear from that affidavit that the respondent was warned prior to the institution of litigation of the trade mark and of the alleged infringement and made no response. The respondent says that it is not obligated to respond to such a letter. It was not so obligated. However, the failure to do so required the suit to be commenced. In those circumstances, and in the absence of any claim for damages or an account of profits, I think it appropriate to order that the respondent pay the applicant's costs.