Microsoft Corporation v Short [2011] FCA 247

FEDERAL COURT OF AUSTRALIA

Microsoft Corporation v Short [2011] FCA 247 Citation: Microsoft Corporation v Short [2011] FCA 247

Parties: MICROSOFT CORPORATION and MICROSOFT PTY LIMITED (ACN 002 589 460) v NATHAN JOHN SHORT

File number: NSD 21 of 2011

Judge: STONE J

Date of judgment: 18 March 2011

Catchwords: PRACTICE AND PROCEDURE – notice of motion seeking judgment on default – Order 35A, rule 3(2)(c) Federal Court Rules – applies where proceeding commenced by application and statement of claim – application for judgment on default need not be supported by evidence – sufficient that application is for relief sought in statement of claim and Court has jurisdiction - respondent failed to attend directions hearing – no notice of appearance filed – respondent personally served with originating process, orders of first directions hearing and notice of motion – satisfied relief in statement of claim should be granted. TRADE MARKS – Trade Marks Act 1995 (Cth) – infringement of registered Trade Mark "Windows" –injunction and ancillary relief sought – injunction granted pursuant to s 126 Trade Marks Act 1995 (Cth) – order for delivery up of all material bearing the infringing mark granted as ancillary relief and pursuant to ss 22 and 23 Federal Court of Australia Act 1976 (Cth). CONSUMER LAW – Australian Consumer Law (Qld) – Fair Trading Act 1999 (Qld) – misleading and deceptive conduct – injunction sought – injunction granted pursuant to s 98 Fair Trading Act 1999 (Qld) and s 232 Australian Consumer Law (Qld).

Legislation: Australian Consumer Law (Qld) s 232 Fair Trading Act 1999 (Qld) s 98 Federal Court of Australia Act 1976 (Cth) ss 22 and 23 Trade Marks Act 1995 (Cth) s 126 Federal Court Rules, O 35A r 3(2)(c)