Taylor v Killer Queen, LLC (No 5) [2023] FCA 364

FEDERAL COURT OF AUSTRALIA

Taylor v Killer Queen, LLC (No 5) [2023] FCA 364 File number: NSD 1774 of 2019

Judgment of: MARKOVIC J

Date of judgment: 21 April 2023

Catchwords: TRADE MARKS – infringement claim pursuant to s 120 of the Trade Marks Act 1995 (Cth) – whether respondents are liable as joint tortfeasors in breach of s 120 of the Act – whether certain types of merchandise sold in Australia are clothes or goods of the same description as clothes – defence under the proviso in s 120(2) of the Act – whether any use of the infringing mark in relation to goods of the same description as clothes is unlikely to deceive or cause confusion – defence under s 122(1)(a) of the Act – whether the second respondent is entitled to use of the "own name" defence – whether use of the infringing mark was in good faith – defence under s 122(1)(fa) of the Act – whether respondents would obtain registration of the infringing mark for clothes if they were to apply for it – whether alleged joint tortfeasors are entitled to benefit of defences under s 122(1)(a) – claim under 88(1)(a) of the Act to rectify the Register of Trade Marks by cancelling the applicant's mark – whether grounds in s 88(2)(a) of the Act, relying on ss 60, 42 and 43 of the Act, are established – whether ground in s 88(2)(c) of the Act is established – reputation of the infringing mark prior to the priority date of the applicant's mark – whether use of the applicant's mark in relation to clothes is contrary to law – whether the applicant's mark is likely to deceive or cause confusion – whether the relief sought should be limited by reason of laches, acquiescence and delay – claim for additional damages PRACTICE AND PROCEDURE – application for suppression order – whether order necessary to prevent prejudice to proper administration of justice – consideration of appropriate duration of order