Baiada Pty Ltd v PQM (Vic) Pty Ltd trading as Lilydale Wholesale Meats [2019] FCA 1604

FEDERAL COURT OF AUSTRALIA

Baiada Pty Ltd v PQM (Vic) Pty Ltd trading as Lilydale Wholesale Meats [2019] FCA 1604 File number: NSD 1484 of 2019

Judge: YATES J

Date of judgment: 25 September 2019

Catchwords: TRADE MARKS – where applicants seek interim injunctive relief for trade mark infringement – final injunctions granted by consent CONSUMER LAW – where applicants seek interim injunctive relief for contraventions of the Australian Consumer Law –final injunctions granted by consent

Legislation: Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law

Date of hearing: 25 September 2019

Registry: New South Wales

Division: General Division

National Practice Area: Intellectual Property

Sub-area: Trade Marks

Category: Catchwords

Number of paragraphs: 5

Counsel for the Applicants: Mr A Fox

Solicitor for the Applicants: Gadens

Counsel for the Respondents: The Second Respondent appeared on behalf of himself and the First Respondent

ORDERS NSD 1484 of 2019

BETWEEN: BAIADA PTY LTD ACN 000 426 808 First Applicant

BAIADA POULTRY PTY LIMITED ACN 002 925 948 Second Applicant

AND: PQM (VIC) PTY LTD ACN 631 205 831 T/AS LILYDALE WHOLESALE MEATS First Respondent

HENRI-CLAUDE LOUIS PHILLIPE DUPONT, PREVIOUSLY KNOWN AS AND ALSO KNOWN AS PHILLIP WICKHAM Second Respondent

JUDGE: YATES J DATE OF ORDER: 25 SEPTEMBER 2019

BY CONSENT, AND WITHOUT ADMISSIONS AS TO LIABILITY, THE COURT ORDERS THAT: 1. Subject to Order 2, the first respondent, whether by itself, its servants or agents, be immediately: (a) restrained from offering for sale, promoting for sale, selling or distributing any and all of the PQM Products as defined in the Statement of Claim under the name 'LILYDALE free range meats'; (b) restrained from offering for sale, promoting or sale, selling or distributing any meat and poultry products under or by reference to the name 'Lilydale Free Range'. 'Lilydale Free Range Meats' or any sign that is the same as or substantially identical with or deceptively similar to 'Lilydale Free Range Chicken'; (c) restrained from offering for sale, promoting for sale, selling or distributing any meat and poultry products containing the term 'Lilydale' under or by reference to get up the same as or substantially similar to the 'Get-Up' as described in paragraph 10 of the Statement of Claim (Get-up). 2. The first respondent will not be in breach of Order 1 if: (a) it uses the term 'Lilydale' on product packaging and in the name of a product to indicate that the product is sourced or produced from Lilydale, Victora; and (b) the word 'Lilydale' does not appear on any product packaging as the most prominent or significant word used in any brand name or sign used for such product. 3. The second respondent whether by himself, his servants or agents or howsoever is immediately restrained from engaging in conduct authorising, licensing or procuring: (a) the first respondent to: (i) offer for sale, promote for sale, sell or distribute any and all of the PQM Products as defined in the Statement of Claim under the name 'LILYDALE free range meats'; (ii) offer for sale, promote for sale, sell or distribute any meat and poultry products under or by reference to the name 'Lilydale Free Range', 'Lilydale Free Range Meats' or any sign that is the same as or substantially identical with or deceptively similar to 'Lilydale Free Range Chicken'; (iii) offer for sale, promote for sale, sell or distribute any meat and poultry products containing the term 'Lilydale' under or by reference to get up the same as or substantially similar to the Get-Up; or (iv) offer for sale, promote for sale, sell or distribute any product that contravenes the terms of Orders 1 and 2. (b) any other person to: (i) offer for sale, promote for sale, sell or distribute any and all of the PQM Products as defined in the Statement of Claim under the name 'LILYDALE free range meats'; (ii) offer for sale, promote for sale, sell or distribute any meat and poultry products under or by reference to the name 'Lilydale Free Range', 'Lilydale Free Range Meats' or any sign that is the same as or substantially identical with or deceptively similar to 'Lilydale Free Range Chicken'; (iii) offer for sale, promote for sale, sell or distribute any meat and poultry products containing the term 'Lilydale' under or by reference to get up the same as or substantially similar to the Get-Up; or (iv) offer for sale, promote for sale, sell or distribute any product that contravenes the terms of Orders 1 and 2. 4. The proceeding be otherwise dismissed with no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.