Natural Floor Covering Centre Pty Ltd v Monamy (No 4) [2006] FCA 1197

FEDERAL COURT OF AUSTRALIA

Natural Floor Covering Centre Pty Ltd v Monamy (No 4) [2006] FCA 1197 INTELLECTUAL PROPERTY – trade marks and trade names – similar marks and goods and services of the same description – substantial identity CONTEMPT OF COURT – disobedience of court orders – construction of order - where respondent unrepresented at previous hearing and limited reopening sought PRACTICE - judgments and orders – construction and interpretation – contempt proceedings – use of surrounding circumstances - where respondent unrepresented at previous hearing and limited reopening sought Held – that there was a reasonable doubt that the respondent's use of the mark was a use that was the same or substantially identical with the registered marks of the applicant and accordingly the previous finding that the respondent was guilty of contempt of court on that basis should be vacated. Athens v Randwick City Council (2005) 64 NSWLR 58 followed Natural Floor Covering Centre v Monamy (No 3) [2006] FCA 602 referred to Smith v The New South Wales Bar Association (1992) 176 CLR 256 followed The Shell Co of Australia Limited v Esso Standard Oil (Australia Limited) (1963) 109 CLR 407 applied NATURAL FLOOR COVERING CENTRE PTY LTD (ACN 001 211 392) v DENNIS MONAMY NSD 1658 OF 2005 RARES J 29 MAY 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALESDISTRICT REGISTRY NSD 1658 OF 2005

BETWEEN: NATURAL FLOOR COVERING CENTRE PTY LTD

(ACN 001 211 392)

APPLICANT

AND: DENNIS MONAMY

RESPONDENT

JUDGE: RARES J

DATE OF ORDER: 29 MAY 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The finding that Charge 2 is proven beyond reasonable doubt be vacated. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA