Jemella Australia Pty Ltd v Boutcher [2009] FCA 376

FEDERAL COURT OF AUSTRALIA

Jemella Australia Pty Ltd v Boutcher [2009] FCA 376

INTELLECTUAL PROPERTY – trade marks – counterfeit items – importation – held infringement PRACTICE AND PROCEDURE – default on appearance by respondent – where respondent has filed defence and evidence in support – whether appropriate to order judgment in default or proceed to trial – applicant's election to lead evidence on the trial held to be preferable course

Trade Marks Act 1995 (Cth) ss 133, 137, 139 Federal Court Rules O 35A r 2(2)(h) JEMELLA AUSTRALIA PTY LTD (ACN 104 455 138) v LIANE CHERIE BOUTCHER and JEMELLA LIMITED

QUD306 of 2008

LOGAN J

17 APRIL 2009

BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD306 of 2008

BETWEEN: JEMELLA AUSTRALIA PTY LTD (ACN 104 455 138)

Applicant

AND: LIANE CHERIE BOUTCHER

First Respondent

JEMELLA LIMITED

Second Respondent

JUDGE: LOGAN J

DATE OF ORDER: 17 APRIL 2009

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. The First Respondent be restrained pursuant to s 126 of the Trade Marks Act 1995 (Cth), whether by herself, her servants, agents or otherwise howsoever from importing, promoting, distributing, advertising, offering for sale, displaying or otherwise using, counterfeit hairstyling products bearing the marking "ghd hairstyling iron", "ghd styler", or "ghd" or otherwise infringing Registered Trade Mark No. 951 664, being the letters "GHD". 2. The consignment consisting of four (4) hairstyling products described as "GHD branded hair straighteners", seized pursuant to s 133 of the Trade Marks Act 1995 (Cth) on 18 August 2008, which goods are referred to in the Notice of Seizure to Objector dated 18 August 2008 addressed to "Miss Cherie", be forfeited to the Commonwealth. 3. The First Respondent pay the Applicant's costs of the proceedings fixed in the amount of $8,000. AND THE COURT DIRECTS THAT: 4. The Applicant serve a copy of this Order on the First Respondent by ordinary prepaid post at the address given by the First Respondent for service. 5. The parties have liberty to apply within fourteen (14) days in respect of the order for costs. 6. The judgment in respect of costs not be entered for fourteen (14) days after the date of this Order and in default of any submissions within fourteen (14) days the judgment in respect of costs be entered. 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.