Bacchus Distillery Pty Ltd v BDS Marketing (Aust) Pty Ltd [2012] FCA 1520

FEDERAL COURT OF AUSTRALIA

Bacchus Distillery Pty Ltd v BDS Marketing (Aust) Pty Ltd [2012] FCA 1520 Citation: Bacchus Distillery Pty Ltd v BDS Marketing (Aust) Pty Ltd [2012] FCA 1520

Parties: BACCHUS DISTILLERY PTY LTD v BDS MARKETING (AUST) PTY LTD (In Liquidation) (ACN 006 597 011) and CB GLOBAL MANAGEMENT PTY LTD (ACN 134 548 566)

File number: VID 673 of 2011

Judge: NORTH J

Date of judgment: 17 December 2012

Date of hearing: 17 December 2012

Place: Melbourne

Division: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 6

Solicitor for the Applicant: Mr D McAloon of Clayton Utz

Counsel for the Respondents: The Respondents did not appear

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 673 of 2011

BETWEEN: BACCHUS DISTILLERY PTY LTD

Applicant

AND: BDS MARKETING (AUST) PTY LTD (In Liquidation) (ACN 006 597 011)

First Respondent

CB GLOBAL MANAGEMENT PTY LTD (ACN 134 548 566)

Second Respondent

JUDGE: NORTH J DATE OF ORDER: 17 DECEMBER 2012 WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. Pursuant to section 500(2) of the Corporations Act 2001 (Cth), the Applicant is granted leave to proceed with this proceeding against the First Respondent. 2. This proceeding be discontinued. 3. The Applicant and BDS International Limited be discharged from the undertaking set out in the interlocutory order made in this proceeding on 5 July 2011. 4. Each of the Respondents be restrained, whether by itself or by its servants or agents or otherwise, from causing to be manufactured, importing, distributing, promoting for sale or supply, offering, displaying, advertising, selling and/or supplying any alcoholic beverages in or under and by reference to the packaging which appears on any of the following: (a) Exhibit A1 being the Respondents' COWBOY 2 litre cask, as partially depicted in the photograph which is Annexure A1 to this Order; (b) Exhibit A2 being the Respondents' COWBOY 700 ml bottle, as partially depicted in the photograph which is Annexure A2 to this Order; (c) Exhibit A3 being the Respondents' COWBOY 6 x 30 ml pack with contents, as partially depicted in the photograph which is Annexure A3 to this Order; and (d) Exhibit A4 being the Respondents' QF 6 x 30 ml pack without contents, as partially depicted in the photograph which is Annexure A4 to this Order, or any packaging which is a colourable imitation of that which appears on: (e) the COWBOY Liqueur Product (2 litres) being Exhibit VH-36 to the Affidavit of Vincent Heng affirmed 23 June 2011 (the Heng Affidavit), as partially depicted in the photograph in Exhibit VH-35 which is Annexure A5 to this Order; (f) the COWBOY Liqueur Product (700 ml) being Exhibit VH-34 to the Heng Affidavit, as partially depicted in the photograph in Exhibit VH-33 which is Annexure A6 to this Order; (g) the COWBOY Shot Products wrap or COWBOY shot being Exhibits VH-20, VH-21 and VH-22 and Exhibits VH-16, VH-17 and VH-18 respectively to the Heng Affidavit, as partially depicted in the three photographs in Exhibit VH-19 and the four photographs in Exhibit VH-15 which are Annexure A7 and Annexure A8 respectively to this Order; and (h) the QF Shot Products wrap or QF shot being Exhibit VH-56 and Exhibit VH-54 respectively to the Heng Affidavit, as partially depicted in the photograph in Exhibit VH-55 and the photograph in Exhibit VH-53 which are Annexure A9 and Annexure A10 respectively to this Order. 5. The Respondents deliver up to the Applicant's solicitors for destruction under the supervision of the Applicant (or its agent) all of the goods, packaging, catalogues, price lists, brochures, advertising material, video cassettes and other documents or things in the possession, custody, power or control of the Respondents, the sale or use of which would fall within the scope of Order 4. 6. The Respondents pay forthwith 60% of the Applicant's costs of and incidental to the application dated 24 June 2011 for interlocutory relief in this proceeding, as agreed between the parties or taxed by the Court in default of agreement. 7. There is no further order as to costs. Note: Entry of order is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 673 of 2011