Pakula Tackle Australia Pty Ltd v Zacatak Lures Australia Pty Limited [2009] FCA 71

FEDERAL COURT OF AUSTRALIA

Pakula Tackle Australia Pty Ltd v Zacatak Lures Australia Pty Limited [2009] FCA 71 PRACTICE AND PROCEDURE – application for interlocutory injunctive relief – prima facie no case established – absence of evidence of serious case to be tried – interlocutory injunction refused

TRADE MARKS — Alleged infringement of shape trade mark in fishing lures and fishing equipment by rival trader — Whether rival trader used the shape of the registered trade mark as a trade mark — Meaning of use as a trade mark — Whether goods themselves can constitute a trade mark — Whether the trade mark must have a separate identity from that of the goods — Whether the features of the shape travel beyond the functional and technical requirements inherent in the goods — Whether the rival trader's fishing lures and fishing equipment are deceptively similar to the applicant's fishing lures and fishing equipment — No prima facie case of trade mark infringement — Balance of convenience and justice against the grant of an injunction — Interlocutory injunction refused.

TRADE PRACTICES — Misleading and deceptive conduct — s 52 of the Trade Practices Act — Whether the promotion and supply of fishing lures and fishing equipment by a rival trader is likely to deceive potential purchasers into believing the rival trader's product was put out by or associated with the applicant or that the rival trader is itself associated with the applicant — The competing products were sufficiently differentiated — Absence of evidence of serious case to support application for interlocutory injunction to restrain promotion and supply of the new product — Balance of convenience and balance of justice against grant of interlocutory injunction in any event — Interlocutory injunction refused.

COPYRIGHT — Whether assignment of copyright right to bring an alleged infringement claim — Alleged infringement of copyright in fishing lures and fishing equipment by rival trader — Substantial reproduction of copyright material — Serious case to be tried —Balance of convenience and justice against the grant of interlocutory injunction in any event — Interlocutory injunction refused.