Case: New South Wales Dairy Corporation v Murray Goulburn Co-operative Company (1989) 14 IPR 75
Outcome: considered
Sixth, while I found that the applicant was not entitled to the full extent of relief sought, nonetheless as a general proposition the applicant succeeded in establishing that it was entitled to injunctive relief to protect its statutory monopoly in its registered trade mark. However advancing this matter further, Mr Franklin SC submitted that the case before me is on all fours with New South Wales Dairy Corporation v Murray Goulburn Co-operative Company (1989) 14 IPR 75. Mr Franklin SC directed my attention to comments of Gummow J in that case as follows: That brings me to the question of costs. As is apparent both from the reasons for judgment and these reasons, the case presented a number of issues and neither the applicant nor the first respondent succeeded on all of them. Much of the evidence was directed to several issues. Thus, the body of evidence as to whether MOO was substantially identical to or deceptively similar with MOOVE (trade mark issues upon which the applicant succeeded) was used also upon the different legal issues arising upon the first respondent's claims for contravention of s.52 of the Trade Practices Act 1974 ("the TP Act ") and passing-off (issues upon which the applicant failed). The first respondent also pointed to the substantial body of evidence going to the issues discussed in the reasons for judgment under the heading "The Conduct of the First Respondent", issues upon which the first respondent succeeded. Given the outcome of circumstances of this complex litigation in which varied relief was sought by the applicant and by the first respondent, upon a range of grounds, the first respondent submitted that the applicant should be entitled only to a proportion of its costs. The applicant submitted that costs should follow the "event" in the sense that the "event" in a commercial sense had been the effort by the applicant to stop further use by the first respondent of "MOO" upon its flavoured milk product. That is an objective the applicant will have achieved by this litigation, upon the coming into effect of the rectification of the Register, and the consequent operation of the injunction to restrain trade mark infringement. In all the circumstances, in my view, the appropriate order should be that the first respondent should pay the costs of the applicant. (at 79) 24 While New South Wales Dairy Corporation (1989) 14 IPR 75 is helpful I do not think it is on all fours with the case before me. It is true that the applicant in these proceedings has obtained an injunction, however looking more closely at the application it is clear that the applicant did not achieve all that it sought in its application or indeed the injunction it sought. This is not a case where, to paraphrase the language of the Full Court in Australian Trade Commission v Disktravel [2000] FCA 62 at [4] , the applicant succeeded completely in terms of the final orders it secured. I am not persuaded on the basis of New South Wales Dairy Corporation (1989) 14 IPR 75 that this is not a case where some apportionment of costs may be warranted.