Swancom Pty Ltd v The Jazz Corner Hotel Pty Ltd (No 2) [2021] FCA 328

Federal Court of Australia

Swancom Pty Ltd v The Jazz Corner Hotel Pty Ltd (No 2) [2021] FCA 328 File number(s): VID 330 of 2019

Judgment of: O'BRYAN J

Date of judgment: 9 April 2021

Catchwords: TRADE MARKS – validity – whether "Corner Hotel" and "Corner" marks capable of distinguishing applicant's services of conducting a live music venue within s 41 of the Trade Marks Act 1995 (Cth) – whether use of those marks likely to deceive or cause confusion within s 88(2)(c) – infringement – whether respondents infringed applicant's marks by using the "Jazz Corner Hotel" name and associated names and brands as trade marks in relation to live music services – whether marks have been used as trade marks in relation to live music services – whether marks are deceptively similar to "Corner Hotel" and "Corner" within s 120(1) – whether use in good faith to indicate a characteristic of the services within s 122(1)(b)(i) – whether entitled to obtain registration of marks for the purposes of s 122(1)(fa) – whether use of registered marks is the exercise of rights granted under the Trade Marks Act 1995 (Cth) and thereby satisfies s 122(1)(e) – whether the corporate respondents are joint tortfeasors – whether individual respondent, as director of the corporate respondents, is a joint tortfeasor

Legislation: Trade Marks Act 1995 (Cth) ss 7(1), 10, 25, 41, 41(3), 41(4), 44(2), 44(3)(a), 44(3)(b), 44(4), 57, 88(1)(a), 88(2)(a), 88(2)(c), 120(1), 120(2), 122(1)(b)(i), 122(1)(e), 122(1)(fa), 126(1), 126(2) Trade Marks Amendment Act 2006 (Cth) s 41 Federal Court Rules 2011 (Cth) r 14.03 Intellectual Property Laws Amendment (Raising the Bar) Act 2012 (Cth)