Outdoor Power Products Pty Ltd v Silvan Australia Pty Ltd [2005] FCA 1696

FEDERAL COURT OF AUSTRALIA

Outdoor Power Products Pty Ltd v Silvan Australia Pty Ltd [2005] FCA 1696 TRADE MARKS – shape mark – use as a trade mark – interlocutory injunction Trade Marks Act 1995 (Cth) ss 10, 120

OUTDOOR POWER PRODUCTS PTY LTD v SILVAN AUSTRALIA PTY LTD VID 1295 of 2005 FINKELSTEIN J 16 NOVEMBER 2005 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1295 of 2005

BETWEEN: OUTDOOR POWER PRODUCTS PTY LTD

Applicant

AND: SILVAN AUSTRALIA PTY LTD

Respondent

JUDGE: FINKELSTEIN J

DATE OF ORDER: 16 NOVEMBER 2005

WHERE MADE: MELBOURNE

UPON THE APPLICANT byits Counsel undertaking: (a) to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory order or undertaking or any continuation (with or without variation) thereof; and, (b) to pay the compensation referred to in (a) to the person there referred to. THE COURT ORDERS THAT: 1. Until the trial of this action or further order the Respondent, whether by itself, its directors, its servants and agents or howsoever otherwise, be and it hereby is restrained from selling or offering for sale a backpack style container in the shape and colours of the backpack container which is exhibit MDB 1 to the affidavit of Malcolm David Brown, sworn 10 November 2005, or any other backpack container which is of a similar shape and in similar colours. AND THE COURT DIRECTS THAT: 2. The Respondent file and serve its defence and any cross claim by 7 December 2005. 3. The Applicant file and serve any reply and defence to any cross claim by 16 December 2005. 4. The parties file and serve a list of discoverable documents by 27 January 2006. 5. The direction hearing be listed for further hearing on 3 February 2006. 6. The costs of this application be reserved.