Pinnacle Runway Pty Ltd v Triangl Limited [2019] FCA 1662

FEDERAL COURT OF AUSTRALIA

Pinnacle Runway Pty Ltd v Triangl Limited [2019] FCA 1662 File number: VID 794 of 2016

Judge: MURPHY J

Date of judgment: 10 October 2019

Catchwords: TRADE MARKS – whether the second respondent infringed the applicant's trade mark pursuant to s 120 of the Trade Marks Act 1995 (Cth) – whether the mark was used to distinguish its goods from the goods of other traders. TRADE MARKS – cross-claim for cancellation of a trade mark pursuant to s 88 of the Trade Marks Act 1995 (Cth) – whether cross-respondent was the first to use the trade mark in Australia in relation to the goods for which that mark is registered – whether marks which were used earlier than the priority date are identical or substantially identical to registered trade mark – whether substantial identity between two marks where multiple differences exist – whether a total impression of similarity emerges from a comparison between the two marks. EVIDENCE – hearsay evidence – whether screenshots of webpages advertising women's fashion apparel and swimwear for sale under particular style names and at specified prices constitute business records under s 69 of the Evidence Act 1995 (Cth) – finding that such evidence does fall within the business records exception – consideration of evidence that the "Wayback Machine" automatically archives and retrieves webpages, without relevant human intervention – whether screenshots of archived webpages obtained using the Wayback Machine constitute hearsay under s 59 of the Evidence Act – whether such evidence should be excluded under s 135 of the Evidence Act or their use limited under s 136 of the Evidence Act. DAMAGES – claim for damages for lost sales – whether claim for damages for diminution of reputation established – whether conduct of the respondent is such as to justify an award of additional damages under s 126(2) of the Trade Marks Act 1995 (Cth).