Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
Australian Health Industry Co. Pty Ltd v VVS Australia Pty Ltd [2017] FCA 322 File number: VID 1165 of 2016
Judge: MURPHY J
Date of judgment: 28 March 2017
Catchwords: PRACTICE & PROCEDURE – Application for default judgment under r 5.23(2) of the Federal Court Rules 2011 (Cth) – failure to comply with orders – application granted
Legislation: Competition and Consumer Act 2010 (Cth) Trade Marks Act 1995 (Cth)
Cases cited: Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 133 KerryJ Investment Pty Ltd v Xiamen Fengwei Energy Technology Co Ltd [2013] FCA 361 Speedo Holdings BV v Evans (No 2) [2011] FCA 1227
Date of hearing: Heard on the papers
Date of last submissions: 2 February 2017
Registry: Victoria
Division: General Division
National Practice Area: Intellectual Property
Sub-area: Trade Marks
Category: Catchwords
Number of paragraphs: 21
Counsel for the Applicants: I P Horak
Solicitor for the Applicants: Davies Collison Cave Law
Counsel for the Respondents: The Respondents did not appear
ORDERS VID 1165 of 2016
BETWEEN: AUSTRALIAN HEALTH INDUSTRY CO. PTY LTD (ACN 164 971 331) First Applicant
BRAND INTERNATIONAL PTY LTD Second Applicant
AND: VVS AUSTRALIA PTY LTD First Respondent
JING ZHANG Second Respondent
JUDGE: MURPHY J DATE OF ORDER: 27 FEBRUARY 2017
THE COURT DECLARES THAT:
1. The Respondents have: (a) contravened section 120(1) of the Trade Marks Act 1995 (Cth) (the TMA) by infringing the First Applicant's registered trade mark number 1673158 for EAORON (the Trade Mark) registered in class 3, by using as a trade mark the sign EAORON in relation to goods in respect of which the Trade Mark is registered; and (b) by reason of the Respondents' use, without the First Applicant's consent, of the Trade Mark: (i) engaged in conduct that is misleading or deceptive or likely to mislead or deceive, in contravention of section 18 of the Australian Consumer Law (contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (the ACL)); (ii) made false representations that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history, in contravention of section 29(1)(a) of the ACL; (iii) made false or misleading representations that goods have the sponsorship or approval of the Applicants, in contravention of section 29(1)(g) of the ACL; (iv) made false or misleading representations that the Respondents have the sponsorship or approval of, or an affiliation with, the Applicants, in contravention of section 29(1)(h) of the ACL; and (v) engaged in the tort of passing off.
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