Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
ESPN, Inc v Thomas [2010] FCA 1232
Citation: ESPN, Inc v Thomas [2010] FCA 1232
Parties: ESPN, INC v ANDREW THOMAS and ROYAL AGRICULTURAL SOCIETY OF NSW TRADING AS SYDNEY SHOWGROUND
File number(s): NSD 1525 of 2010
Judge: JAGOT J
Date of judgment: 9 November 2010
Catchwords: TRADE MARKS – interlocutory injunction
Legislation: Copyright Act 1968 (Cth) Fair Trading Act 1987 (NSW) Trade Marks Act 1995 (Cth)
Date of hearing: 9 November 2010
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 21
Counsel for the Applicant: Mr R Cobden SC and Mr C Dimitriadis
Solicitor for the Applicant: DLA Phillips Fox
Counsel for the First Applicant: The First Respondent did not appear
Solicitor for the Second Applicant: Mr S Sloan of Dibbs Barker
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION NSD 1525 of 2010
BETWEEN: ESPN, INC
Applicant
AND: ANDREW THOMAS
First Respondent
ROYAL AGRICULTURAL SOCIETY OF NSW TRADING AS SYDNEY SHOWGROUND
Second Respondent
JUDGE: JAGOT J
DATE OF ORDER: 9 NOVEMBER 2010
WHERE MADE: SYDNEY
UPON THE APPLICANT BY ITS COUNSEL UNDERTAKING: (a) to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of orders 1 to 4 below or any continuation (with or without variation) thereof; and (b)to pay the compensation referred to in (a) to the person there referred to, THE COURT ORDERS ON AN EX PARTE BASIS THAT: 1. Pending the final determination of these proceedings or further order, the first respondent, whether by himself, his servants or agents or otherwise, be restrained from, without the licence of the applicant, promoting, organising or conducting the event to take place in Sydney, Australia on 13 and 14 November or any similar sporting competition or event under or by reference to the name XSPORT GAMES, the name X GAMES or any substantially identical or deceptively similar name, the device set out in Part 1 of the schedule to these orders, the device set out in Part 2 of the schedule to these orders or any substantially identical or deceptively similar device, or any other name that includes both the elements "X" and "GAMES" (whether separated or together). 2. Without limiting order 1 above, pending the final determination of these proceedings or further order, the first respondent, whether by himself, his servants or agents or otherwise, be restrained from, without the licence of the applicant, distributing, making available or continuing to distribute or make available the promotional material copies of which are contained in Annexures E, F and G to the affidavit of Kathryn Howard affirmed 8 November 2010 and broadcasting or causing to be broadcast the radio advertisement referred to at paragraphs 12 to 15 of that affidavit. 3. Pending the final determination of these proceedings or further order, the first respondent forthwith remove from the website at www.xsportgames.com.au all copies of or links to the footage identified in EXHIBIT BT5 to the affidavit of Bridget Tilley sworn 5 November 2010. 4. Pending the final determination of these proceedings or further order, the first respondent, whether by himself, his servants or agents or otherwise, be restrained from, without the licence of the applicant, making a copy of, causing to be seen or heard in public or communicating to the public the footage referred to in order 3 above. THE COURT FURTHER ORDERS THAT: 5. The applicant be granted leave to file in Court an amended application and a statement of claim in the form provided to the Court on 9 November 2010. 6. The matter be listed for further directions in the week of 15 November 2010 before the Docket Judge. 7. Liberty to restore on 24 hours' notice. 8. Costs reserved. 9. Pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth), access to the following documents be restricted to the solicitors and counsel for the parties pending further or other order: (a) Exhibits BT-1 to BT-4 tendered at the interlocutory hearing on 9 November 2010; and (b) Exhibit 6 tendered at the interlocutory hearing on 9 November 2010.
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