3 Florinians Pty Ltd v PYT Enterprise Pty Ltd [2016] FCA 1077

3 Florinians Pty Ltd v PYT Enterprise Pty Ltd [2016] FCA 1077

The applicant established a strong prima facie case that the mark used by the respondents is deceptively similar to its registered trade mark, causing consumer confusion. The balance of convenience favours the applicant, as the harm to its reputation and business is unquantifiable, whereas the cost to the respondents for temporary removal of the word 'Little' from their marks is quantifiable and proportionate. An interlocutory injunction is warranted to restrain the use, pending trial or further order.

Parties
Applicant: 3 Florinians Pty Ltd; First Respondent: PYT Enterprise Pty Ltd; Second Respondent: Adamaris Pty Ltd
Jurisdiction
Australia
Judgment Date
05 September 2016
Procedural Posture
Interlocutory Injunction Application in Trade Mark Infringement Proceeding / Interlocutory (injunction Pending Trial or Further Order)
Outcome
Interlocutory injunction granted against respondents in terms sought by applicant, pending trial or further order; costs reserved.
Legal Topics
Trade Marks, Interlocutory Injunction, Deceptively Similar Marks, Balance of Convenience, Undertaking as to Damages
Intellectual Property Trade Marks Interlocutory Injunction Deceptively Similar Marks Balance of Convenience Undertaking as to Damages

Case Brief

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Parties

3 Florinians Pty Ltd

Applicant

PYT Enterprise Pty Ltd

First Respondent

Adamaris Pty Ltd

Second Respondent

Procedural Posture

Interlocutory Injunction Application in Trade Mark Infringement Proceeding / Interlocutory (injunction Pending Trial or Further Order)

Legal Issues

  1. 1 Whether interlocutory injunction should be granted to restrain use of allegedly deceptively similar mark
  2. 2 Whether respondents' marks are deceptively similar to applicant's registered trade mark
  3. 3 Whether balance of convenience favours grant of injunction

Ratio Decidendi

The applicant established a strong prima facie case that the mark used by the respondents is deceptively similar to its registered trade mark, causing consumer confusion. The balance of convenience favours the applicant, as the harm to its reputation and business is unquantifiable, whereas the cost to the respondents for temporary removal of the word 'Little' from their marks is quantifiable and proportionate. An interlocutory injunction is warranted to restrain the use, pending trial or further order.

Court Disposition

Interlocutory injunction granted against respondents in terms sought by applicant, pending trial or further order; costs reserved.

Orders

  • First and second respondents to remove the word 'little' or 'Little', whether stylised or not, from the marks 'little Greek cuzina', at the relevant business premises, within 30 days of the order, pending trial or further order.
  • Leave to applicant to file amended originating application and amended Fast Track statement.