GSM (Trademarks) Pty Ltd v Shao [2006] FCA 1272

FEDERAL COURT OF AUSTRALIA

GSM (Trademarks) Pty Ltd v Shao [2006] FCA 1272

GSM (TRADEMARKS) PTY LTD (ACN 085 955 291) AND GSM (OPERATIONS) PTY LTD (ACN 085 950 803) v DAVID WEI SHAO NSD 1731 OF 2006

GRAHAM J

21 SEPTEMBER 2006

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1731 OF 2006

BETWEEN: GSM (TRADEMARKS) PTY LTD (ACN 085 955 291)

First Applicant

GSM (OPERATIONS) PTY LTD (ACN 085 950 803)

Second Applicant

AND: DAVID WEI SHAO

Respondent

JUDGE: GRAHAM J DATE OF ORDER: 21 SEPTEMBER 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The Applicants have leave to file in Court a Notice of Motion dated 20 September 2006, an affidavit of Kenneth James Taylor sworn 20 September 2006, an affidavit of Themis Papas sworn 19 September 2006, and an affidavit of Nathan James Shepherd sworn 20 September 2006. 2. The requirements of Order 19 rules 3 and 4 be dispensed with in relation to the Notice of Motion dated 20 September 2006, and such Notice of Motion be returnable instanter. 3. Pursuant to Order 7 rule 10, the application, the affidavit sworn by Kenneth James Taylor on 7 September 2006 and the affidavit sworn by Marianne David on 8 September 2006 be taken to have been served on the Respondent on 12 September 2006. 4. Pursuant to section 137(5) of the Trade Marks Act 1995 the 2,965 mobile phone covers bearing the mark BILLABONG seized by the Australian Customs Service on 10 August 2006 not be released by the Chief Executive Officer of the Australian Customs Service to the Respondent. 5. The Applicants notify the Respondent of these orders and the reasons for judgment delivered 21 September 2006, by sending a copy of the orders as entered, and a transcript of the reasons for judgment, by pre-paid post to each of 728 Parramatta Road, Petersham NSW 2049 ("Petersham Address") and Unit 808, 199 Pyrmont Street, Pyrmont NSW 2099 ("Pyrmont Address"), such postage to be effected by no later than 5pm on Monday 25 September 2006, or in the event that the transcript is not available by that time, as soon as it becomes available. 6. The Applicants notify the Chief Executive Officer of the Australian Customs Service of these orders today by facsimile or other electronic means and subsequently provide a copy of the transcript of the reasons for judgment delivered 21 September 2006, and the orders as entered, as soon as those documents become available to the Applicants' solicitors. 7. Costs of the Notice of Motion dated 20 September 2006, and the hearing for interlocutory relief on 21 September 2006, be reserved. 8. The matter be listed for further directions at 9:30am on 12 October 2006. 9. The Applicants' solicitors notify the Respondent of the date of the directions hearing on 12 October 2006 by a letter sent by pre-paid post to each of the Petersham Address and the Pyrmont Address. UPON THE APPLICANTS, BY THEIR COUNSEL, GIVING THE USUAL UNDERTAKINGS AS TO DAMAGES, THE COURT ORDERS THAT: 10. Until further order, the Respondent by himself, his servant or agents, be restrained from: (a) importing; (b) causing or procuring the or importation of; (c) selling or offering or exposing for sale, goods bearing: (i) one or more of the trade marks set out in the Schedule to these Orders; or (ii) any mark which is substantially identical with or deceptively similar to any one or more of the trade marks set out in the Schedule to these Orders, without the prior consent of the Applicants.