Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Ward Group Pty Ltd v Brodie & Stone Plc [2005] FCA 471
TRADE MARKS – passing off and trade mark infringement claimed in respect of the advertising for sale on the Internet of products manufactured and distributed in the United Kingdom under a mark that has an established reputation in Australia – the advertising was uploaded in the United Kingdom and downloaded in Australia in the course of trap purchases of the products - whether the advertising constituted a representation in Australia or a use of the mark in Australia – whether the trap purchases evidenced a passing off or an infringing use of the mark in Australia – whether the making of the trap purchases constituted a consent by the registered proprietor to the use of the trade mark in Australia – whether the manufacturer or distributor of the products in the United Kingdom was a joint tortfeasor with the website proprietors in respect of the alleged passing off and trade mark infringement
Trade Marks 1995 (Cth) ss 7, 8, 9, 120(1) and 123(1)
Bray v F Hoffman-La Roche Ltd (2002) 118 FCR 1 - cited Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 – distinguished CC Wakefield & Co Ld v Purser (1934) 51 RPC 167 - cited Erven Warnink Besloten Vennootschap v Townend & Sons (Hull) Ltd [1979] AC 731 - applied Moorgate Tobacco Co Limited v Philip Morris Limited (No 2) (1984) 156 CLR 414 – cited ConAgra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302 - cited Betta Foods Australia Pty Ltd v Betta Fruit Bars Pty Ltd (1998) ATPR 41-624 - cited Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 – cited Revlon Inc v Cripps & Lee Ltd [1980] FSR 85 – cited Star Micronics Pty Ltd v Five Star Computers Pty Ltd (1990) 18 IPR 225 - cited Malibu Boats West Inc v Cantonese (2000) 180 ALR 119 - cited Norbert Steinhardt & Son Limited v Meth (1961) 105 CLR 440 - cited Zippo Manufacturing Company v Zippo Dot Com Inc 952 F Supp 1119 (WD Pa 1997) - cited New Zealand Post Ltd v Leng [1999] 3 NZLR 219 – cited Mecklermedia Corp v DC Congress GmbH [1998] Ch 40 – cited Australian Competition and Consumer Commission v Chen (2003) 132 FCR 309 – distinguished Transport Tyre Sales Pty Ltd v Montana Tyres Rims & Tubes Pty Ltd (1999) 162 ALR 175 – cited Re Wilmer's Trusts; Wingfield v Moore [1910] 2 Ch 111 - cited Thompson v Australian Capital Television Pty Limited (1996) 186 CLR 574 – applied CBS Songs Ltd v Amstrad Consumer Electronics PLC [1988] AC 1013 - applied Cadbury Limited v Ulmer GmbH [1998] FSR 385 - cited British Telecommunications PLC v One in a Million Ltd [1999] FSR 1 – applied
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