FEDERAL COURT OF AUSTRALIA Bauer Consumer Media Ltd v Mamamia.com.au Pty Ltd [2014] FCA 1400 Citation: Bauer Consumer Media Ltd v Mamamia.com.au Pty Ltd [2014] FCA 1400 Parties: BAUER CONSUMER MEDIA LIMITED and BAUER MEDIA PTY LIMITED v MAMAMIA.COM.AU PTY LIMITED File number: NSD 1269 of 2014 Judge: RARES J Date of judgment: 17 December 2014 Legislation: Competition and Consumer Act 2010 (Cth) Trade Practices Act 1974 (Cth) Cases cited: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 applied Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397 referred to Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45 referred to Cantarella Bros Pty Ltd v Modena Trading Pty Ltd (2014) 315 ALR 4 referred to Emap Elan Ltd v Pacific Publications Pty Ltd (1997) 37 IPR 1 referred to Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 referred to Kosciuszko Thredbo Pty Ltd v ThredboNet Marketing Pty Ltd (2014) 223 FCR 517 referred to Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 referred to Ricegrowers Ltd v Real Foods Pty Ltd (2008) 77 IPR 32 referred to Samsung Electronics Co Limited v Apple Inc (2011) 217 FCR 238 applied Date of hearing: 17 December 2014 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 50 Counsel for the Applicants: Dr RCA Higgins Solicitor for the Applicants: Dibbs Barker Counsel for the Respondent: Mr GA Sirtes SC with Mr C O'Neill Solicitor for the Respondent: Kay & Hughes IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1269 of 2014 BETWEEN: BAUER CONSUMER MEDIA LIMITED First Applicant BAUER MEDIA PTY LIMITED Second Applicant AND: MAMAMIA.COM.AU PTY LIMITED Respondent JUDGE: RARES J DATE OF ORDER: 17 DECEMBER 2014 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The interlocutory application be dismissed. 2. The applicants pay the respondent's costs of the interlocutory application. The Court notes the undertaking of the respondent by its counsel to publish a disclaimer in the form of exhibit 1 on its website www.debriefdaily.com. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1269 of 2014 BETWEEN: BAUER CONSUMER MEDIA LIMITED First Applicant BAUER MEDIA PTY LIMITED Second Applicant AND: MAMAMIA.COM.AU PTY LIMITED Respondent JUDGE: RARES J DATE: 17 DECEMBER 2014 PLACE: SYDNEY REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 Both applicants, Bauer Consumer Media Limited (Bauer UK), a United Kingdom company, and its Australian related company Bauer Media Pty Limited (Bauer Australia) (together Bauer), and the respondent Mamamia.com.au Pty Limited are publishers of women's topical news, opinion, lifestyle and current affairs stories on the internet and social media platforms. Bauer seeks an interlocutory injunction restraining Mamamia from proceeding to launch a new publication under the name Debrief Daily in the circumstances that I will describe below. Background 2 All of the evidence on this application has been given on information and belief by the parties' solicitors in circumstances of urgency. I have based the following findings on that necessarily incomplete foundation, that may change substantially when evidence is called at the final hearing. 3 For about the last year, Bauer UK has published material under its brand name, The Debrief, on the website domain "thedebrief.co.uk". Bauer also uses associated Debrief publications to carry, principally, lifestyle stories aimed at a demographic described in Bauer's trade and consumer launch publicity announcement, issued on 21 November 2013, as "ABC1 20-something women". I assume that this is a demographic of women in the 20s age group in general, although there may be some slight overlaps with women in their early 30s or late teens. Bauer has social media platforms that operate under the brand name The Debrief, including through Facebook, Twitter, Instagram, Pinterest, YouTube and Google+. 4 Bauer UK had been developing The Debrief over about a year, before its launch to the general public occurred in November 2013. It registered the domain name on 31 January 2013 and began using the website for audience research in April 2013. Bauer UK created a holding page on The Debrief website that had an email sign-up link and links to The Debrief social media platforms that I have mentioned. 5 The Debrief website and social media platforms have attracted paid advertising sponsorship from numerous multinational brands and, of course, because The Debrief is published electronically it has been accessible internationally using the internet and social media platforms, including in Australia. 6 Google Analytics for the period of nearly 11 months to 27 November 2014 recorded that The Debrief website had had over 5.3 million visitor sessions made by about 3.94 million unique visitors with more than 10 million pages viewed, including 50,738 Australian visitor sessions by 41,097 unique visitors that had 77,699 page views. In the four weeks preceding 28 November 2014, The Debrief Facebook page was served to more than 1.6 million people of whom 1822 were in Australia. As at 4 December 2014, The Debrief's Twitter feed had over 24,100 followers, its Instagram platform had more than 4,500 and its Pinterest platform had more than 16,000. Between February 2014 and 25 November 2014, its YouTube platform had more than 200,000 views and its Google+ platform had just over 14,000 views. There is no data for Australian users of those social media platforms other than Facebook. 7 Bauer has obtained United Kingdom and European Union registration for The Debrief as a trademark. It sees Australia as a specific location in which to roll out The Debrief brand. Bauer Australia has applied for a trademark here and in New Zealand. On 23 September 2014, Bauer Australia registered four URLs for the proposed Australian The Debrief website. However, each of those URLs has a suffix after "thedebrief" and before the ".com" portion of the address such as, e.g., "thedebriefaustralia.com.au". Bauer has also held discussions with one of its major clients, L'Oréal, concerning its planned local deployment of a website and associated social media platforms for the Australian version of The Debrief that it intends to launch early in the new year. 8 Bauer Australia also intends to establish a local editorial and sales team, to secure advertisers and sponsorships and to commence development work. Those plans include significant use of Bauer UK's The Debrief website's goodwill and content, with supplementation from Australian editorial contributions. 9 Bauer UK has invested a considerable sum in developing The Debrief electronic publications and has begun generating a modest return on that investment from advertising revenues. 10 Mamamia is an Australian company that, since its launch in 2007 has owned, published and operated a website at the domain "mamamia.com.au" and operates subsidiary associated websites that it has styled as the Mamamia Women's Network. 11 Mamamia's principal publishing focus is women of all age ranges. It also displays paid advertisements on its website pages for goods and services ranging from baby food to overseas holiday accommodation. The Mamamia Women's Network comprises three women's lifestyle websites, the first branded iVillage, dealing with topics ranging from pregnancy and parenting to beauty, food and gardening, the second branded The Glow launched in July 2014, being a women's health, beauty, fitness and wellbeing website and the third, and presently controversial, Debrief Daily website. 12 Mamamia publicly announced on 17 November 2014 that it would launch the Debrief Daily website in the first quarter of 2015. The new website is proposed to cover a range of subjects including relationships, news, entertainment, family, divorce, travel, careers and finance and to be targeted at women over 40 who, according to its 43 year old publisher Mia Freedman, "feel like 1990 was 10 years ago". 13 Like Bauer's publishing model, Mamamia has complemented its internet sites by creating, in November 2014, social media platforms that it operates on Facebook, Pinterest, Instagram, Twitter and Google+. 14 In late 2013, Mamamia began considering the concept for the Debrief Daily website, but not its name, to be targeted at women over 40 years of age. During 2014 Mamamia's senior management worked on developing this concept and in September 2014 decided to launch it in the first quarter of 2015. Once it had taken that decision, Mamamia's managers began considering names in October 2014 and began searching for available URLs, as well as preparing a vision board to conceptualise the look and feel of what would be published. 15 On 27 October 2014, in an online desktop chat exchange or "conversation", Ms Freedman suggested the new domain name "debriefdaily.com" after finding that the domain name "dailydebrief.com" was not available. Mamamia has since registered the domain names "debrief daily.com" and versions with suffixes for ".co.uk" and ".com.au". On 28 October 2014, Ms Freedman announced to her staff that the new website would be called Debrief Daily. Work began after this to create artwork and logos for the concept. 16 Mamamia's strategy is to attract women of all ages to its principal website and use it as a means to redirect readers, once there, to related websites within its network, including the Debrief Daily website so they will all grow "organically". 17 The present evidence is that no one within Mamamia was aware of The Debrief brand, its website or associated social media until shortly before Bauer complained of Mamamia's use of the word "Debrief" in its new website following the public announcement of the brand launch of Debrief Daily on 17 November 2014. 18 Currently the evidence of Mamamia's intentions for the content of the Debrief Daily publications is substantially conceptual and derives from articles that exist also on Mamamia's principal website. That content includes a story headlined "Letting Go of Your Identity as a Working Person" and a photograph of Gail Kelly, the soon to retire chief executive of Westpac Banking Corporation, a major Australian trading bank, a story by Ms Freedman and another with the headline "Things Only Women Over 40 Understand". 19 Each side relied on Google search results. However, those results may be affected by the fact that the searches were undertaken by the parties' solicitors. The search results in evidence for "debrief daily" do not throw up, at this stage, any references to The Debrief perhaps unsurprisingly, because The Debrief has not yet been fully launched in Australia. However, Google searches for "Daily Debrief" and "Debrief Daily" did return a result for a United Kingdom department store publication located at the domain "TheDailyDebriefDebenhams.com". The Google searches in evidence do not demonstrate that a search of "debrief" throws up results for either the Debenhams website or Mamamia's Debrief Daily. And, similarly, Google searches for Daily Debrief and Debrief Daily do not throw up results for The Debrief. 20 During the course of the argument, Mamamia proffered an undertaking to the Court that it will insert, but on only the home and about pages for the "debreifdaily.com" website, as opposed to the websites suffixed for Australian and UK domains, a disclaimer at the bottom of each of the two pages stating: "Please note this is NOT "The Debrief" website run by Bauer Consumer Media Limited (UK) and is not approved, endorsed or sponsored by it". 21 This is the context in which Bauer asserts that there is a likelihood of confusion among Australian consumers, or of passing off, arising from Mamamia's use of the word "debrief" in its brand name for Debrief Daily. Bauer does not make a claim that it has a trademark at common law in the expression The Debrief for present purposes. 22 Last week, on 8 December 2014, the docket judge, Bennett J, offered the parties the opportunity of having an early final hearing that would take place commencing on 16 February 2015, if the parties could agree as an alternative to dealing with an interlocutory injunction application. Unfortunately, I have to decide this interlocutory dispute because they could not agree. Bauer's submissions 23 Bauer argues that the evidence establishes that it has a sufficient reputation in Australia for The Debrief to entitle it to seek protection quia timet from an apprehended contravention by Mamamia through the use of the word "debrief" in its brand name Debrief Daily. Bauer argues that it has a sufficient prima facie case to found injunctive relief and that the balance of convenience favours that an injunction issue until trial to protect its reputation and goodwill in The Debrief brand. Bauer argues that the key and dominant word in both brand names in issue, namely The Debrief and Debrief Daily, is "debrief". It contends that the word "debrief" in its brand is distinctive and not descriptive. Bauer argues that the primary ordinary English meaning of the word is associated with the denouement of military operations. 24 Bauer contends that the existence, for over a year, of its active website accessed internationally, including in Australia by at least 40,000-odd viewers, has established a reputation here for it, and that Australian consumers are likely to be misled by some perceived association between Mamamia's use of Debrief Daily in its proposed website and social media platforms and Bauer's brand in The Debrief. Bauer also argues that there is an overlap, or likely overlap, between women who will be interested in searching for the offerings of both rival sets of publications. It contends that Mamamia's use of the Debrief Daily website and the associated social media platforms creates, or is capable of and likely to create, an association with Bauer's own brand name or, alternatively, that the Debrief Daily website is capable of being seen as a subset of Bauer's brand name or that the Debrief Daily website has some affiliation with, or approval from, Bauer's brand name. In addition, Bauer contends that Mamamia is passing off the Debrief Daily website as a publication associated with Bauer's own brand, especially through what is likely to be thrown up if Mamamia's brand Debrief Daily is launched on internet search engines. 25 Bauer contends that damages will not be an adequate remedy and, indeed, would be extremely difficult to calculate if interlocutory relief were not granted. This is because of the nature of the two business models, each of which depends solely on receiving advertising revenue from sponsors as its source of earnings, based on the attraction of significant levels of readership to entice the sponsors to make the investment in the sponsorships. Bauer points to the fact that, at the moment, Mamamia's proposed website and associated media platforms, using the name Debrief Daily, have not yet been launched and that the present evidence shows that Mamamia is still in negotiations with, but does not yet have confirmed sponsorships from, any of the potential advertisers. Bauer argues that its established reputation, both internationally and with those persons in Australia who have by now visited its website and other social media, stands in contrast to the merely potential reputation that Mamamia's competitor new website and social media platforms will have, if launched next year, if there were no restraints by injunction. 26 The nature of the relief claimed on an interlocutory basis by Bauer is an injunction, effectively, restraining Mamamia from using the name Debrief Daily or any other name materially similar to The Debrief to promote, in effect, any goods or services of a lifestyle and general interest website, or social media platform, aimed at women of all ages. Bauer seeks five variants in different iterations of the proposed injunctive relief that it has framed in very broad terms. Consideration 27 The test applicable for the grant of an interlocutory injunction is contained in the organising principles identified in the reasons of Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at 81-82 [65], namely: 'The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd [(1968) 118 CLR 618]. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued [(1968) 118 CLR 618 at 622-623]: "The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted." By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument [(1968) 118 CLR 618 at 620]. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal [(1968) 118 CLR 618 at 622]: "How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks."' 28 In Samsung Electronics Co Limited v Apple Inc (2011) 217 FCR 238 at 261 [67], Dowsett, Foster and Yates JJ said that the question of whether there is a serious question, or a prima facie case, should not be considered in isolation from the balance of convenience and that the apparent strength of the parties' substantive cases would often be an important consideration to be weighed in the balance. 29 There is some evidence, as Bauer contends, that it has a reputation in Australia, though it is very difficult to assert the size of that reputation, or how enduring it is. At the moment, there is very little in the authorities to deal with the nature of reputations gained by single visits of persons to internet web pages. The evidence, such as it stands, is that about 41,000 unique viewers, that is, individuals, have accessed The Debrief website from Australia, and that those viewers have visited about 78,000 pages, on apparently, 50,000-odd visits. In other words, most of the 41,000 persons will have visited the website once, and are likely not to have been attracted to go back to it. 30 However, that does not mean that there is no reputation of The Debrief in Australia. It is difficult to gauge that reputation's significance with the kind of Google analytics in evidence. Nonetheless, it is clear from the decision of Hill J in Emap Elan Ltd v Pacific Publications Pty Ltd (1997) 37 IPR 1, that a publication of a monthly magazine entitled "more!" by an English publisher, that sold about 150 copies per fortnight (see 37 IPR at 9), could found an interlocutory injunction to restrain the publication of a proposed Australian magazine using a mast-head with the same word but simply entitled "more". 31 The tort of passing off is not anchored, necessarily, to a name or trademark of a product or business, but can encompass descriptive material, such as slogans or visual images, provided that the descriptive material has become part of the goodwill of the product: see Ricegrowers Ltd v Real Foods Pty Ltd (2008) 77 IPR 32 at 43-49 [51]-[77] where I discussed the authorities. 32 Where a representation is made, or likely to be made, to the public or a section of it, a Court has to consider the position of an ordinary reasonable person in the class of persons to whom the representation is or is to be made, in order to assess its effect both in respect of claims for passing off and for misleading or deceptive conduct under s 18 of The Australian Consumer Law in Sch 2 to the Competition and Consumer Act 2010 (Cth) and its analogues. 33 That provides an objective standard based on the reaction of the hypothetical representee: Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45 at 84-85 [101]-[103]. There Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ observed that a class of consumers may be expected to include a wide range of persons, but that the Court had to isolate the "ordinary" or "reasonable" members of that class, and that task required it to make an objective attribution of certain characteristics to such persons. They approved what Gibbs CJ had said in Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 199, that the legislation, now reflected in s 18, did not impose burdens which operated for the benefit of persons who failed to take reasonable care of their own interests, and they continued, saying (202 CLR at 85 [103]): Where the persons in question are not identified individuals to whom a particular misrepresentation has been made or from whom a relevant fact, circumstance or proposal was withheld, but are members of a class to which the conduct in question was directed in a general sense, it is necessary to isolate by some criterion a representative member of that class. The inquiry thus is to be made with respect to this hypothetical individual why the misconception complained has arisen or is likely to arise if no injunctive relief be granted. In formulating this inquiry, the courts have had regard to what appears to be the outer limits of the purpose and scope of the statutory norm of conduct fixed by s 52 [cf Environment Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 at 30-31]. Thus, in Puxu, Gibbs CJ observed that conduct not intended to mislead or deceive and which was engaged in "honestly and reasonably" might nevertheless contravene s 52 [Puxu (1982) 149 CLR 191 at 197]. Having regard to these "heavy burdens" which the statute created, his Honour concluded that, where the effect of conduct on a class of persons, such as consumers, was in issue, the section must be "regarded as contemplating the effect of the conduct on reasonable members of the class" [Puxu (1982) 149 CLR 191 at 199]. (emphasis added) 34 Here, of course, one is dealing with persons who are casually reading what might be loosely described as lifestyle or like publications, not persons involved in making a serious decision in which they have a financial or other interest that may be substantially affected. The classes of readers here are women of the competing demographics suggested by the parties, including, with the possibility of overlaps, of all intelligences and attention spans. They are simply persons who are performing internet searches for the purposes of, presumably, passing the time, reading articles of no great substance, but which may be informative for their lifestyle or informational needs. In those circumstances, the ordinary reasonable member of any class to which the contending websites and social media platforms may be attracted is not likely to spend a large amount of time analysing the results of any search or other identifier to perceive whether she is being taken to some valued source of information on which to make any decision, let alone an important decision, for their lives, apart from how to pass the next few minutes in possible areas of reading interest. 35 Of course, the importance of the consumer's reaction is vital to each of the parties here, because they seek to derive advertising revenue once readers are attracted to their respective publication platforms when they are up and running as intended. 36 The courts have been very reluctant to allow traders to monopolise the use of words in general use. There are obvious reasons of public policy for this concern. Honest traders will want to use descriptive words to describe their products or services, and should not be precluded by one of their trade rivals being able to obtain a monopoly in that word, either by claiming it to be a trademark or otherwise distinctive of that particular trader's good or service: see e.g., the discussion by French CJ, Hayne, Crennan and Kiefel JJ in Cantarella Bros Pty Ltd v Modena Trading Pty Ltd (2014) 315 ALR 4 at 17-18 [56]–[59], 20-21 [70]–[71]. They said that (315 ALR at 21 [71]): Speaking generally, words which are prima facie entitled to a monopoly secured by registration [as a trademark] are inherently adapted to distinguish. 37 But their Honours had earlier explained that whether a word was capable of being registered as a trademark (a situation different to the foundation of the present claims for relief) depended on whether the ordinary signification of a word, English or foreign, could be established on inquiry to be such that other, honest traders might legitimately need to use it in respect of their goods or services. 38 In the law of passing off the Courts have recognised that the risk of confusion from the use of a descriptive word as part of a trader's name or brand must be accepted. That is because, as Stephen J said in Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 at 229; … to do otherwise is to give to one who appropriates to himself descriptive words an unfair monopoly in those words and might even deter others from pursuing the occupation which the words describe. He then said that similar principles applied to the analogue of s 18, then s 52 to the Trade Practices Act 1974 (Cth) because allowing that section to be used as an instrument for the creation of any monopoly of a descriptive name "would be to mock the manifest intent of the legislation" (140 CLR at 230). 39 Recently, Siopis, Rares and Katzmann JJ considered the use of a geographic name in relation to claims of passing off and misleading and deceptive conduct in Kosciuszko Thredbo Pty Ltd v ThredboNet Marketing Pty Ltd (2014) 223 FCR 517. The Full Court noted that the principles related to passing off did not necessarily require an applicant, such as the confectionary maker in Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2007) 159 FCR 397 at [96], to establish an exclusive reputation in relation to the use of a particular colour or other distinguishing characteristic; in that case, purple. The question is whether an applicant can establish facts that demonstrate that a particular use by a respondent of the characteristic in issue misled or deceived, or was likely to mislead or deceive, consumers into believing there was some relevant connection between the respondent and the applicant or their respective product or services. In other words, whether someone familiar with the applicant's product or services would be led to believe that the applicant's and the respondent's products or services were in some way associated, having regard to the state of knowledge of consumers in Australia of the applicant's product or services (223 FCR at 524-525 [29]). 40 In Kosciuszko 223 FCR 517, the operator of Thredbo Resort, whose predecessor in title had established the resort, alleged that the respondent's use of the name "Thredbo" in its websites for "Thredbo Reservations" either passed off or was misleading or deceptive in respect of the association the respondent allegedly sought to create between its own business and that of the resort operator. The Full Court rejected that claim and found that the word "Thredbo" was not distinctive, but was a geographic name and did not have an established secondary meaning connecting it simply to the resort operator as the sole provider of services of accommodation. In the course of discussing the principles, the Full Court considered what an ordinary reasonable member of the public looking for accommodation on the internet might do, and said (223 FCR at 530 [48]): But in today's society the ordinary or reasonable consumer seeking accommodation, or other goods or services, on the internet will frequently click on a result in a web search thinking it is a link to a particular site, only to find when his or her browser is directed to the selected site that it is not the site of the supplier or business that the consumer wanted. The ordinary, reasonable consumer who came upon the home page of www.thredbo.com would have seen, depending on when he or she accessed it, the first or second disclaimer in the middle of the page. Each disclaimer appeared under a recognisable, distinctive heading "About Thredbo.com". It did not have the appearance, as asserted by the appellants, of being "buried in the text". 41 Of course, that was a case dealing with persons wishing to purchase accommodation services at considerable expense who could be expected to exercise a great deal more care about their web browsing or social media activities than persons who might be interested in reading the sorts of publications each of the parties wishes to, and does, make on the internet and social media platforms. While it is true that there will be no particularly bright line between the demographic identified by Bauer as the 20 somethings and that of Mamamia for its proposed use of Debrief Daily as the over 40s, the Google search results for Debrief Daily describe in the two or three lines under the link what the website is about, stating: Welcome to Debrief Daily – where the conversation goes next for women over 40. Publisher Mia Freedman writes … This year I turn 43 and over the last 12 … 42 In my opinion, that description would be likely to indicate pellucidly to anyone who searched for Debrief Daily, or came upon Debrief Daily, where that result was being displayed that if the person was in the under 20s age group, used to reading or knowing of the reputation of Bauer's offerings, that such a result meant that they would not be looking at what Bauer's offering was in The Debrief brand, but at something different. 43 The question, which I must decide, is how strong the probability of Bauer succeeding in establishing a prima facie case would be. I accept that there is a possibility that there will be a risk of confusion because the two names. Both employ "debrief" as the principal, or apparently principal, reference point for a person who would be conducting a web search or scanning results thrown up by such a web search. Nonetheless, I am not satisfied that Bauer has established a sufficiently strong case to warrant the grant of interlocutory relief within the principles in O'Neill 227 CLR at 81- 82 [65]. 44 In making such an assessment, it is necessary to look at the strength of the probabilities and the practical consequences likely to flow from the order the applicant seeks. In my opinion, the applicant is seeking an order that would effectively prevent Mamamia being able to launch a brand using a descriptive word which has not become distinctive of Bauer in Australia or elsewhere. I accept there is a reputation of The Debrief brand or name in Australia, but, in my opinion, it does not have any sufficient or particular strength to justify granting Bauer injunctive relief against the launch of a website that is likely to be found at trial, on the strength of the evidence before me, to be directed to a different target audience and is not likely to confuse any of the relevant audiences. 45 While there will always be an overlap, in various degrees, of interests of human beings in topical stories, there will be a convergence between the age groups at the boundaries, nonetheless, the two demographics, of women in their 20s and women in their 40s, appear nearly a generation apart. The likelihood is that, overall, their interests are likely to be different. The differences in demographics are, of course, matters that vendors of goods and services are acutely interested in, as are these publishers. That is why they have identified particular target markets and have, in launching their two products, pitched them at distinctly different age groups. 46 For these reasons, I am not satisfied that there is a sufficient likelihood that Bauer would succeed at a trial to warrant the grant of interlocutory relief. 47 I think the balance of convenience is very difficult to establish in a case like this. Each side asserts that it will be harmed irreparably depending on whether the interlocutory relief claimed is granted or not because of the imponderabilities of the markets that they each will need to develop over a period. Were I otherwise satisfied that there was a sufficiently strong prima facie case to warrant a grant of interlocutory relief, I would have found that the balance of convenience weighed slightly towards Bauer's argument. At present, the stage at which Mamamia's development of its concept is, at best, nascent. 48 There is no evidence that there is any particular difficulty in finding a name and associated social media names that can be grouped with any selected brand name. Indeed, Bauer has had the difficulty that it does not have the ability to register The Debrief with simply ".com.au", but has had to resort to other variations for its proposed Australian-orientated website. Nonetheless, this difficulty has not inhibited Bauer in seeking to pursue its commercial objectives in that regard. 49 While Mamamia's offer of the undertaking to publish a disclaimer has some attraction, it has, as Bauer argued, the limitation that it does not apply to anything other than the debrief.com website and, in particular, does not apply to the other websites to which readers of the social media platforms would, or could, be directed. Conclusion 50 For these reasons, I am of opinion that Bauer's application for interlocutory relief should be refused. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 6 February 2015