Specsavers Pty Ltd v Buyinvite Pty Ltd (No 2) [2012] FCA 292

FEDERAL COURT OF AUSTRALIA

Specsavers Pty Ltd v Buyinvite Pty Ltd (No 2) [2012] FCA 292 Citation: Specsavers Pty Ltd v Buyinvite Pty Ltd (No 2) [2012] FCA 292

Parties: SPECSAVERS PTY LTD (ACN 097 147 932) v BUYINVITE PTY LTD (ACN 134 648 589) and STEPHEN PATRICK COLES

File number: NSD 389 of 2012

Judge: FOSTER J

Date of judgment: 22 March 2012

Legislation: Australian Consumer Law, s 18, s 29

Date of hearing: 22 March 2012

Place: Sydney

Division: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 9

Counsel for the Applicant: Mr DB Studdy SC

Solicitor for the Applicant: Minter Ellison

Solicitor for the Respondents: Mr A Carney of Carneys Lawyers

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 389 of 2012

BETWEEN: SPECSAVERS PTY LTD (ACN 097 147 932)

Applicant

AND: BUYINVITE PTY LTD (ACN 134 648 589)

First Respondent

STEPHEN PATRICK COLES

Second Respondent

JUDGE: FOSTER J DATE OF ORDER: 22 MARCH 2012 WHERE MADE: SYDNEY

THE COURT:

1. MARKS as MFI-1 in the proceeding the Short Minutes of Order dated 22 March 2012 handed up in Court today. 2. GRANTS leave to the respondents to file in Court the Notice of Address for Service nominating Carneys Lawyers, Solicitors dated 21 March 2012. 3. GRANTS leave to the applicant to file in Court the affidavit of Dennis Schubauer sworn on 22 March 2012 and the affidavit of Ken Taylor sworn on 12 March 2012. 4. DECLARES that the first respondent has, in trade or commerce: (a) engaged in misleading or deceptive conduct or conduct that is likely to mislead or deceive in contravention of s 18 of the Australian Consumer Law; (b) made false or misleading representations that goods are of a particular value in contravention of s 29(a) of the Australian Consumer Law; and (c) made false or misleading representations that the respondents have a sponsorship, approval or affiliation in contravention s 29(h) of the Australian Consumer Law, by making the representations "80% OFF Alex Perry Glasses" and "80% OFF Alex Perry Frames" in advertisements placed on the Internet. 5. ORDERS that, for so long as the applicant and its franchisees have the exclusive right to offer for sale in Australia Alex Perry branded spectacle frames or glasses, the second respondent be restrained from making the representation "80% OFF Alex Perry Glasses" or "80% OFF Alex Perry Frames" or any other representations suggesting that it offers for sale Alex Perry glasses or Alex Perry frames or that information relating to Alex Perry Glasses or Alex Perry Frames is available at the website www.buyinvite.com.au. 6. ORDERS that the second respondent forthwith take all steps necessary to prevent any Google Adword advertisement placed by the respondents, or either of them, being displayed in response to Google searches containing any of the key words "Alex Perry" or "Perry" in conjunction with the words "glasses" or "frames" or other words to similar effect. 7. ORDERS that Order 5 of the orders made on 13 March 2012 be vacated. 8. ORDERS that the respondents pay the applicant's costs of and incidental to the proceeding. 9. ORDERS that the proceeding otherwise be dismissed. 10. ORDERS that the Exhibits be returned. 11. ORDERS that these orders may be entered forthwith. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.