NSW Caselaw
New South Wales Supreme Court
CITATION : Luxottica Retail v Specsavers [2010] NSWSC 37
HEARING DATE(S) : 20/1/2010 JURISDICTION : Equity Division
JUDGMENT OF : McDougall J at 1
EX TEMPORE JUDGMENT DATE : 20 January 2010
DECISION : See paragraphs [47] to [49] of the judgment.
CATCHWORDS : EQUITY - application for interlocutory injunctive relief - whether defendant should be restrained from continuation of television advertisement - comparing its products with plaintiff's products - misleading and deceptive conduct - whether serious question to be tried as to whether plaintiff is likely to obtain final relief - whether balance of convenience favours grant of injunctive relief. - TRADE AND COMMERCE - Trade Practices Act 1974 (Cth) - misleading and deceptive conduct - comparison advertising.
LEGISLATION CITED : Trade Practices Act 1974 (Cth)
CASES CITED : Gillette Australia Pty Ltd v Energizer Australia Pty Ltd (2002) 193 ALR 629 RHG Mortgage Securities v BNY Trust [2009] NSWSC 1011
PARTIES : Luxottica Retail Australia Pty Limited (Plaintiff) Specsavers Pty Ltd (Defendant)
FILE NUMBER(S) : SC 2010/16265
COUNSEL : J N West QC / P L Dodson (Plaintiff) D B Studdy SC (Defendant)
SOLICITORS : Norton White (Plaintiff) Minter Ellison (Defendant)
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION
McDOUGALL J
20 January 2010
16265/10 LUXOTTICA RETAIL v SPECSAVERS JUDGMENT
1 HIS HONOUR: The plaintiff provides optometry services and supplies optical products, mainly spectacles, from about 280 stores across Australia. Those stores are known as "OPSM" stores and it is convenient to refer to the plaintiff as OPSM. The defendant (Specsavers) operates a number of similar stores across Australia. However, in contrast to OPSM, "Specsavers" stores are operated by franchisees. 2 Specsavers has instituted an advertising campaign that purports to compare spectacles of a certain description available from it with what it says are equivalent spectacles available from OPSM. As one might expect, the comparison is to the disadvantage of OPSM. OPSM complains that the advertisement in question is misleading or deceptive. It seeks interlocutory relief to restrain the continuation of the advertising campaign.
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