Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Edgetec International Pty Ltd v Zippykerb (NSW) Pty Ltd [2012] FCA 281 Citation: Edgetec International Pty Ltd v Zippykerb (NSW) Pty Ltd [2012] FCA 281
Parties: EDGETEC INTERNATIONAL PTY LTD ACN 010 728 784 v ZIPPYKERB (NSW) PTY LTD ACN 109 959 337
File number: QUD 55 of 2011
Judge: REEVES J
Date of judgment: 23 March 2012
Catchwords: TRADE MARKS – s 120(1) Trade Marks Act 1995 (Cth) – registered trade mark 'Kwik Kerb' – infringement of trade mark – 'use' of a sign as a trade mark distinguished from descriptive use – word marks used on a website – side by side comparison test for whether trade mark and sign are substantially identical – 'coined word' as essential feature of registered trade mark – capitalisation as essential feature of registered trade mark – use of words either substantially identical with or deceptively similar to registered trade mark in domain names and on websites – multiple domain names linked to single website – whether use of the sign is use as a 'badge of origin' – 'use' of a sign as a trade mark distinguished from descriptive use – words of a trade mark may be used to describe goods or services but still serve as a badge of trade origin
Legislation: Trade Marks Act 1995 (Cth)
Cases cited: Aldi Stores Ltd Partnership v Frito-Lay Trading Company GmbH (2001) 190 ALR 185; [2001] FCA 1874 Eastman Photographic Materials Co. Ltd. v Comptroller-General of Patents, Designs and Trade Marks (1898) AC 571 Johnson & Johnson Australia Pty Limited v Sterling Pharmaceuticals Pty Limited (1991) 30 FCR 326 Mantra Group Pty Ltd v Tailly Pty Ltd (No 2) (2010) 183 FCR 450; [2010] FCA 291 Mark Foy's Limited v Davies Coop & Company Limited (1956) 95 CLR 190 Shell Company of Australia Limited v Esso Standard Oil (Australia) Limited (1963) 109 CLR 407 Solarhart Industries Pty Ltd v Solar Shop Pty Ltd (2011) 281 ALR 544; [2011] FCA 700 Sports Warehouse Inc v Fry Consulting Pty Ltd (2010) 186 FCR 519, [2010] FCA 664 Wellness Pty Limited v Pro Bio Living Waters Pty Limited [2004] FCA 438 The Oxford Guide to Style (2nd ed, Ritter R, Oxford University Press, 2002)
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