Danley Construction Products Pty Ltd v Max Frank Pte Ltd [2009] FCA 282

FEDERAL COURT OF AUSTRALIA

Danley Construction Products Pty Ltd v Max Frank Pte Ltd [2009] FCA 282 INJUNCTIONS – trade marks – trade practices – passing off – application for interlocutory relief – is there a serious question to be tried – does the balance of convenience favour the granting of relief – would damages be an adequate remedy – held that there is a serious question to be tried – held that the balance of convenience favours the respondent and damages would be an adequate remedy – grant of interlocutory relief refused Trade Marks Act 1995 (Cth) – ss 44, 88, 124, 129 Trade Practices Act 1974 (Cth) - ss 52, 80 Aston v Harlee Manufacturing co (1960) 103 CLR 391 – considered Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 - cited Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 – applied Hexal Australia Pty Ltd v Roche Therapeutics Inc (2005) 66 IPR 325 – discussed Malibu Boats West Inc v Cantanese (2000) 51 IPR 134 - considered DANLEY CONSTRUCTION PRODUCTS PTY LTD ACN 010 901 308 v MAX FRANK PTY LTD and PECA VERBUNDTECHNIK GMBH

QUD 46 of 2008

SPENDER J

31 march 2009

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD 46 of 2008

BETWEEN: DANLEY CONSTRUCTION PRODUCTS PTY LTD ACN 010 901 308

Applicant

AND: MAX FRANK PTE LTD

First Respondent

PECA VERBUNDTECHNIK GMBH

Second Respondent

JUDGE: SPENDER J

DATE OF ORDER: 31 MARCH 2009

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. The application for interlocutory relief is refused. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD 46 of 2008