Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Symbion Pharmacy Services Pty Ltd v Idameneo (No 789) Limited [2011] FCA 389 Citation: Symbion Pharmacy Services Pty Ltd v Idameneo (No 789) Limited [2011] FCA 389
Parties: SYMBION PHARMACY SERVICES PTY LTD (ABN 25 000 875 034) v IDAMENEO (NO 789) LIMITED (ABN 56 004 073 410)
File number: VID 401 of 2010
Judge: JESSUP J
Date of judgment: 20 April 2011
Catchwords: INTELLECTUAL PROPERTY – Trade marks – Determination of question of deceptive similarity – Whether mark so nearly resembles registered mark as to be likely to deceive or to cause confusion – Mark denoting medical services – Services acquired only on reference by medical practitioner – Whether specialist evidence required as to likelihood of deception or confusion – Whether infringement case can succeed in absence of such evidence. CONTRACTS – Agreement not to use certain trade marks – Whether assignment to party entitled to benefit of agreement necessary – Whether contractual term "similar to or capable of being confused with" to be equated with statutory trade mark term "likely to deceive or cause confusion" – Contractual obligation assumed by party already using arguably similar mark – Whether obligation subject to implied exception in favour of continued use of that mark. INTELLECTUAL PROPERTY – Trade marks – Agreement not to use certain trade marks – Whether mark used "similar to or capable of being confused with" mark protected under agreement – Approach to assessment of confusing similarity.
Legislation: Trade Marks Act 1995 (Cth) ss 10, 120(1)
Cases cited: Australian Woollen Mills Ltd v F S Walton & Co Ltd (1937) 58 CLR 641 BP Refinery (Westernport) Pty Limited v Shire of Hastings (1977) 180 CLR 266 General Electric Co Limited (USA) v General Electric Co Limited [1972] 1 WLR 729 Interlego AG and Another v Croner Trading Pty Limited (1992) 39 FCR 348 NSW Dairy Corporation v Murray-Goulburn Co-operative Co Ltd (1989) 86 ALR 549 The Shell Company of Australia Ltd v Esso Standard Oil (Australia) Ltd (1961) 109 CLR 407
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