Case: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 ; (2001) 208 CLR 199
Outcome: cited
Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 ; (2001) 208 CLR 199 makes plain that where interlocutory relief is sought it is necessary to identify the legal or equitable rights which are to be determined at the trial, and in respect of which final relief is sought. In the principal proceedings, the applicant claims: A declaration that the threats of legal proceedings for trade mark infringement made by the Respondents to the Applicant are groundless within the meaning of section 129 of the Trade Marks Act 1995 . An order that the Respondents be permanently restrained, whether by themselves, their directors, officers, employees, servants, agents or otherwise from continuing to make threats of trade mark infringement, by any means including, but not limited to, verbal statements, letters, e-mails or otherwise to the Applicant or any other person. Further in respect of the matters referred to at paragraphs 1 and 2 herein, damages. An order pursuant to section 88 of the Trade Marks Act 1995 that the register of trade marks be rectified by the cancellation or removal of trade mark 1161336. A declaration that the conduct of the First and Second Respondent, whether by themselves, their servants, employees, agents or otherwise in manufacturing, importing, advertising, offering for sale, distributing, or selling building materials used in concrete construction within Australia which bear the sign Pecaform ("the Infringing Products") constitutes conduct which: (a) is misleading and deceptive or likely to mislead and deceive in contravention of section 52 of the Trade Practices Act 1974 ("TPA"); and (b) is a contravention of section 53(c) and (d) of the TPA. A declaration that the conduct of the Respondents, whether by themselves, their directors, officers, employees, servants, agents or otherwise of manufacturing, importing, advertising, offering for sale, distributing, supplying or selling the infringing products within Australia constitutes passing off by the First Respondent of its business and products as being business and/or products of, or related to, or licensed by, or having authorisation of or a connection with, the Applicant. An order restraining the Respondents and each of them, their directors, officers, employees, servants agents or otherwise from manufacturing, distributing, promoting, offering for sale or selling in Australia or causing or permitting (directly or indirectly) to be manufactured, distributed, promoted, offered for sale or sold in Australia the Infringing Products. Further in respect of the matters referred to at paragraphs 5, 6 and 7 herein, damages under section 82 of the TPA. Further in respect of the matters referred to at paragraphs 5, 6, 7 and 8 herein, further or other orders under section 87 of the TPA. Further in respect of the matters referred to at paragraphs 5, 6, 7, 8 and 9 herein, damages for passing off. Further and/or in the alternative to the relief sought in the preceding paragraph, at the option of the Applicant, an account of the profits made by the Respondents and each of them by the said passing off and payment of the amount found to be due on the taking of such account. Delivery up on oath to the Applicant or its duly authorised agent for destruction under supervision of all goods, catalogues, price lists, brochures and other documents and materials, including materials which are or which are capable of being stored, generated or transmitted by an electronic media in the possession, power, custody, or control of the Respondents, bearing the sign Pecaform. Pursuant to section 80 of the TPA an injunction restraining the Respondents by themselves, their directors, officers, employees, servants, agents or otherwise howsoever from contravening section 52 of the TPA by the publication of misleading and deceptive documents and representations, such representations being to the effect that the Applicant is not able and or entitled to sell in Australia and New Zealand products under the name "Pecaform" or that the Applicant is not able to sell or supply to the market in Australia or New Zealand products that the Applicant has been selling and supplying to the market in Australia and New Zealand under the name Pecaform. Damages payable by the Respondents for loss and damage incurred by the Applicant as a result of the Respondents' contravention of section 52 of the TPA as referred to in the preceding paragraph herein. In the alternative to the relief sought in the preceding paragraph herein, at the option of the Applicant, an account of the profits made by the Respondents and or each of them by reason of the wrongful conduct of the Respondents by reason of their wrongful conduct. All such accounts/enquiries as to damages and profit in respect of the contravention of section 52 of the TPA and discovery in aid thereof as may be necessary. 17 Interest pursuant to Section 51A of the Federal Court Act 1976 (Cth). 18 Costs. Such further or other orders, directions and relief as may be necessary or as this Honourable Court deems fit. Orders 1 to 3 concern the making of threats of legal proceedings for Trade Mark infringement. Order 4 seeks cancellation of Trade Mark No 1161336. Order 5 alleges breach of the Trade Practices Act and order 6 alleges passing off, in respect of conduct by the respondents in manufacturing, importing, advertising, offering for sale, distributing, supplying or selling Pecaform products.