The Agency Group Australia Limited v H.A.S. Real Estate Pty Ltd [2023] FCA 482

Federal Court of Australia

The Agency Group Australia Limited v H.A.S. Real Estate Pty Ltd [2023] FCA 482 File number(s): NSD 254 of 2023

Judgment of: JACKMAN J

Date of judgment: 17 May 2023

Catchwords: TRADE MARKS – alleged infringement under s 120(1) of the Trade Marks Act 1995 (Cth) – registered composite and logo marks – whether words used in website URLs and social media handles used as trade marks – whether regard may be had to the context in which the allegedly infringing mark is used – whether descriptiveness of registered mark relevant to assessment of deceptive similarity – admissibility and relevance of evidence of trade usage of elements of a mark – whether defence under s 122(1)(b) of the Trade Marks Act 1995 (Cth) available CONSUMER LAW – allegations of misleading or deceptive conduct and passing off – whether the respondents represented that they or their real estate services were authorised by or affiliated with the applicants – relevant class is consumers of real estate services nationwide – representation not made and conduct does not constitute passing off – presumption of damage in passing off rebutted PRACTICE AND PROCEDURE – pleadings – where concise statement does not disclose alternative method of pleading misleading conduct or passing off case – whether prejudice would be suffered by the respondents – nature of concise statements

Legislation: Competition and Consumer Act 2010 (Cth) Sch 2 (Australian Consumer Law), ss 18, 29(1)(g), (h), (k) Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG Trade Marks Act 1995 (Cth) ss 7(5), 10, 17, 41, 120, 122 Trade Practices Act 1974 (Cth) ss 52, 80 Federal Court Rules 2011 (Cth) r 40.02