British American Tobacco Australasia Limited v The Person Identified by the Australian Customs Service as “Gory Sabar” [2007] FCA 1417

FEDERAL COURT OF AUSTRALIA

British American Tobacco Australasia Limited v The Person Identified by the Australian Customs Service as "Gory Sabar" [2007] FCA 1417 BRITISH AMERICAN TOBACCO AUSTRALASIA LIMITED v THE PERSON IDENTIFIED BY THE AUSTRALIAN CUSTOMS SERVICE AS "GORY SABAR" NSD 1544 OF 2007

BRITISH AMERICAN TOBACCO AUSTRALASIA LIMITED v the person identified by the australian customs service as "GARY MUSSA"

NSD 1545 of 2007

STONE J

22 AUGUST 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1544 OF 2007

BETWEEN: BRITISH AMERICAN TOBACCO AUSTRALASIA LIMITED

Applicant

AND: THE PERSON IDENTIFIED BY THE AUSTRALIAN CUSTOMS SERVICE AS "GORY SABAR"

Respondent

JUDGE: STONE J DATE OF ORDER: 22 AUGUST 2007

WHERE MADE: SYDNEY

THE COURT:

1. GRANTS LEAVE to the applicant to file a Notice of Motion dated 22 August 2007 and supporting affidavit of Robert Anthony Arnold sworn 21 August 2007, returnable instanter before Justice Stone. 2. ORDERS pursuant to Order 19 rule 2(2)(d) that service of this Notice of Motion be dispensed with. 3. ORDERS pursuant to Order 35A rule 3(2)(d) that, in default of the respondent's appearance in the proceedings, final orders be made in the proceedings in the terms of orders 4 to 8 below. 4. ORDERS pursuant to section 137(3)(b) of the Trade Marks Act 1995, the goods listed in Schedule B (Seized Goods) be forfeited to the Commonwealth for disposal at the direction of the Chief Executive Officer of the Australian Customs Service. 5. ORDERS that the respondent by himself, his servants, agents or otherwise, be restrained from: a. manufacturing; b. importing; c. causing or procuring the manufacture or importation of; d. selling or offering or exposing for sale; e. advertising or promoting; or f. otherwise providing cigarettes, tobacco or tobacco products bearing: (i) one or more of the one or more of, the registered trade marks listed in Schedule A (Registered Trade Marks); or (ii) any mark which is substantially identical with or deceptively similar to any one or more of the Registered Trade Marks which have been applied without the consent of the applicant. 6. ORDERS that the respondent by himself, his servants, agents or otherwise, be restricted from authorising, aiding, abetting, counselling or procuring any other person or entity to engage in conduct prohibited by order 5. 7. ORDERS that the applicant be granted leave to use the documents produced by the Australian Customs Service in response to a subpoena issued on 7 August 2007 (and the information contained therein) for the purposes of investigating and pursuing further legal action against third parties. 8. ORDERS that the respondent pay the applicant's costs of the proceedings. 9. NOTES that the applicant no longer seeks any relief mentioned in the application filed in this matter other than that mentioned in these orders. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.