Australian Country Spinners Pty Ltd v Austwide Wholesalers Pty Ltd [2004] FCA 1102

FEDERAL COURT OF AUSTRALIA

Australian Country Spinners Pty Ltd v Austwide Wholesalers Pty Ltd [2004] FCA 1102 Ocean Spray Cranberries Inc v Registrar of Trade Marks (2000) 47 IPR 579 distinguished AUSTRALIAN COUNTRY SPINNERS PTY LTD v AUSTWIDE WHOLESALERS PTY LTD V999 OF 2004 SUNDBERG J 24 AUGUST 2004 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V999 OF 2004

BETWEEN: AUSTRALIAN COUNTRY SPINNERS PTY LTD

(ACN 006 290 713)

APPLICANT

AND: AUSTWIDE WHOLESALERS PTY LTD

(ACN 009 438 153)

RESPONDENT

JUDGE: SUNDBERG J

DATE OF ORDER: 24 AUGUST 2004

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. Upon the Applicant, by its counsel, giving the usual undertaking as to damages, until the trial of these proceeding or further order, the Respondent whether by itself, its directors, officers, employees or agents or howsoever otherwise be restrained from:

(a) importing, processing, balling, labelling, distributing, promoting, offering, or displaying or advertising for sale, selling or supplying any handknitting yarn products under or by reference to the word or mark "feather' or "feathers" or any mark or packaging which is substantially identical with, or misleadingly or deceptively similar to, or which constitutes merely a colourable imitation of the word or mark "feathers";

(b) using the word "feather" or "feathers" or word(s) which are substantially identical with or deceptively similar to the word "feathers" on or in relation to yarns and threads (and goods and/or services of the same description as yarns and threads for textile use) in the course of business conducted by the Respondent;

(c) falsely representing that the Respondent's Product (as defined in paragraph 12 of the Statement of Claim) is of the same standard, quality or value as the Feathers Product (as defined in paragraph 6 of the Statement of Claim);