Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Digitrex (Aust) Pty Ltd v EMT Aust Enterprise Pty Ltd [2004] FCA 1027
PRACTICE AND PROCEDURE – failure to comply with orders – application for default judgment pursuant to O 10 r 7 – whether substantive claims made out
Trade Marks Act 1995 (Cth) ss 120(1) and (2)
Federal Court Rules O 10 r 7(1)(b)
Australian Securities Commission v Macleod (1994) 130 ALR 717 followed Cooper Engineering Company Pty Ltd v Sigmund Pumps Ltd (1952) 86 CLR 536 cited In the Matter of an Application by the Pianotist Company Ltd for the Registration of a Trade Mark (1906) 23 RPC 774 followed Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 cited DIGITREX (AUST) PTY LIMITED AND ANOR v EMT AUST ENTERPRISE PTY LIMITED N 2198 OF 2003 STONE J 9 AUGUST 2004 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N 2198 OF 2003
BETWEEN: DIGITREX (AUST) PTY LIMITED
FIRST APPLICANT
ZHENJIANG JIANGKUI GROUP
SECOND APPLICANT
AND: EMT AUST ENTERPRISE PTY LIMITED
RESPONDENT JUDGE: STONE J DATE OF ORDER: 9 AUGUST 2004
WHERE MADE: SYDNEY
THE COURT DECLARES THAT: 1. The respondent has infringed Australian Trade Mark No 891347 ('the Digitrex Mark') by: (a) using as a sign the word 'DIGITEX' on or in relation to electric goods including home entertainment products, televisions, DVD players, VCR players, audio systems, speakers, refrigerators, microwave ovens and air conditioners; (b) using as a sign the logo depicted below ('The DIGITEX Logo') on or in relation to electric goods including home entertainment products, televisions, DVD players, VCR players, audio systems, speakers, refrigerators, microwave ovens and air conditioners. The Digitex Logo is: 2. The respondent has infringed Australian Trade Mark No 941333 ('the Advertising Mark') by: (a) using as a sign the word DIGITEX on or in relation to electric goods including home entertainment products, televisions, DVD players, VCR players, audio systems, speakers, refrigerators, microwave ovens and air conditioners; (b) using as a sign the Digitex logo on or in relation to electric goods including home entertainment products, televisions, DVD players, VCR players, audio systems, speakers, refrigerators, microwave ovens and air conditioners; (c) using the internet website and domain name known as 'www.mydigitex.com.au'. THE COURT ORDERS THAT: 3. The respondent by itself, its servants, agents or otherwise be permanently restrained from using as a sign the word DIGITEX or the Digitex Logo or any other sign that is substantially identical with or deceptively similar to either the DIGITREX Mark or the Advertising Mark on or in relation to the advertising, sale, offering for sale, distribution, promotion, importation, or hire of any electric goods including home entertainment products, televisions, DVD players, VCR players, audio systems, speakers, refrigerators, microwave ovens and air conditioners, or in or as the internet address for any website promoting or referring to any such products. 4. The respondent by itself, its servants, agents or otherwise be permanently restrained from using in trade or commerce in relation to the distribution, advertisement, promotion, importation, offering for sale or hire in Australia the word DIGITEX or the Digitex Logo or any word or logo deceptively similar to either the DIGITREX Mark or the Advertising Mark thereto or in relation to any of: home entertainment products, televisions, DVD players, VCR players, audio systems, speakers, refrigerators, microwave ovens or air conditioners bearing, or in or as the internet address for any website promoting or referring to any such products. 5. The respondent, by itself, its servants, agents or otherwise be permanently restrained from using the website and domain name 'www.mydigitex.com.au'. 6. The respondent withdraw trade mark application 929737 for DIGITEX and device and trade mark application 951983 for DIGITEX and device. 7. The respondent deliver up on oath, within fourteen (14) days, all products and materials in the respondent's possession, custody or control that bear the Digitex name or the Digitex logo or any other sign that is substantially identical with or deceptively similar to either the DIGITREX Mark or the Advertising Mark. 8. The applicants have leave to apply to the Court within 28 days from the date of this order to have the matter listed for the determination of the quantum of damages payable to the applicants by the respondent. 9. The respondent pay the applicants' costs of these proceedings. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA
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