Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Jemella Australia Pty Ltd v MacKinnon [2008] FCA 1022
INTELLECTUAL PROPERTY – trade marks – Customs – application for injunction under s 126 Trade Marks Act restraining use of trade mark – where allegedly infringing goods seized by Customs – application for order restraining Customs from releasing seized goods – whether the extension of time given by Customs under s 137(1) Trade Marks Act was valid – where failure to apply within limits specified in s 137(1) Trade Marks Act renders extension of time invalid – where circumstances warrant injunction restraining use of trade mark and retention of goods by Customs
Trade Marks Act 1995 (Cth), ss 126, 137(1), 137(5) Federal Court Rules, Order 25, Rule 2 Chanel Ltd v Kim (2007) 166 FCR 1 cited Tasker v Fullwood (1978) 1 NSWLR 20 considered Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 considered JEMELLA AUSTRALIA PTY LTD ACN 104 455 138 v SCOTT MACKINNON and JEMELLA LIMITED
QUD127 of 2008
JEMELLA AUSTRALIA PTY LTD ACN 104 455 138 v DAVID BOWMAN and JEMELLA LIMITED
QUD128 OF 2008
LOGAN J
24 JUNE 2008
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY QUD127 of 2008
BETWEEN: JEMELLA AUSTRALIA PTY LTD ACN 104 455 138
Applicant
AND: SCOTT MACKINNON
First Respondent
JEMELLA LIMITED
Second Respondent
JUDGE: LOGAN J
DATE OF ORDER: 24 JUNE 2008
WHERE MADE: BRISBANE
Upon the Applicant by its Counsel giving the usual undertaking as to damages:
THE COURT ORDERS THAT:
1. Until further order of the Court, the First Respondent be restrained pursuant to s 126 of the Trades Marks Act 1955 (Cth), whether by himself, his servants, agents or otherwise howsoever from importing, promoting, distribution, advertising, offering for sale, displaying or otherwise using in or into Australia: (a) Australian Trade Mark No. 951 664 ("the Trade Mark") (b) Counterfeit hairstyling products bearing the marking "ghd hairstyling iron" or "ghd". 2. Until further order of the Court, the Chief Executive Office of the Australian Customs Service be restrained from releasing the goods referred to in paragraph B2 of the application, which goods are referred to in the notice of seizure to objector dated 28 April 2008. 3. The Applicant's costs be reserved. THE COURT DIRECTS THAT: 4. The Applicant file and serve its statement of claim on or before 4.00pm on 9 July 2008. 5. The First Respondent file and serve its defence within 14 days of service of the Applicant's statement of claim. 6. Liberty to apply on three days notice. 7. The matter is adjourned for further directions at 9.30am on 25 July 2008. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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