Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
World Brands Management Pty Ltd v Cube Footwear Pty Ltd [2004] FCA 769
INTELLECTUAL PROPERTY – claim for interlocutory injunction by applicant and respondents – registered design for "bowling style" shoe – allegations of design infringement, misleading and deceptive conduct under the Trade Practices Act and passing off – whether there is a serious challenge to the registered design – whether consumers would confuse applicant's shoes with respondents' shoes – whether balance of convenience lies in favour of granting injunction – delay by the applicants in bringing motion
Trade Practices Act 1974 (Cth), s 52
Smith v Grigg [1924] 1 KB 655 at 679 applied Water Recreations Pty Ltd v Fairmile Pty Ltd (1982) 42 ALR 273 at 282 applied Safe Sport Australia Pty Ltd v Puma Australia Pty Ltd (1985) 4 IPR 120 at 124 applied Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (1999) 44 IPR 281 discussed WORLD BRANDS MANAGEMENT PTY LTD & ORS v CUBE FOOTWEAR PTY LTD & ORS NO. V267 OF 2004 HEEREY J 4 JUNE 2004 MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY V267 OF 2004
BETWEEN: WORLD BRANDS MANAGEMENT PTY LTD and OTHERS
ACN 093 738 704
APPLICANTS
AND: CUBE FOOTWEAR PTY LTD and OTHERS
ACN 059 140 304
RESPONDENTS
JUDGE: HEEREY J
DATE OF ORDER: 4 JUNE 2004
WHERE MADE: MELBOURNE
THE COURT ORDERS THAT: 1. Leave be granted to join the following parties to the proceeding as respondents: (a) Max Siano, trading as Max's shoes; (b) Sheriton Footwear Pty Ltd; (c) Kahlon Enterprises Pty Ltd; and (d) Gurpreet Singh Kalon. 1. Leave be granted to the applicants to file and serve a Further Amended Application and a Further Amended Statement of Claim in the form exhibited as the exhibit LME-1 to the affidavit of Lisa Maree Egan sworn 4 May 2004 and filed herein. 2. The applicants pay the respondents' costs thrown away by reason of the amendments and joinder referred to in paragraphs 1 and 2 above. 3. Otherwise the applicants' motion by notice dated 4 May 2004 be dismissed with costs. 4. Until trial or further order, the applicants and each of them by themselves, their agents and servants and otherwise howsoever be restrained from making demands of customers or former customers of the first respondent to cease and desist sale or offer for sale of any of the first respondent's shoes known as: (i) Cube 12230 or 91215; (ii) Cube Cult 12232 or 91216; (iii) Cube Korg 2301; (iv) Cube Ken 2300/Kato 2299; (v) Korg Kane 2301A; (vi) Korg Korg 2301; (vii) Shoobiz Latch A5 (Shoobiz brand); (viii) Clone Delay 2313 (Shoobiz brand). 1. The time for service of the first respondent's motion by notice dated 3 June 2004 be abridged. 2. The applicants pay the costs of the first, fifth, sixth and seventh respondents of and associated with the applicants' motion by notice dated 4 May 2004. 3. The costs of the parties of and associated with the respondents' motion by notice dated 3 June 2004 be reserved.
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