Vitaco Health IP Pty Ltd v AFI Cosmetic Pty Ltd (No 2) [2024] FCA 99

Vitaco Health IP Pty Ltd v AFI Cosmetic Pty Ltd (No 2) [2024] FCA 99

Because the applicants had made reasonable efforts to locate and personally serve the second respondent at registered addresses and through domain-related channels, further attempts were not practicable; and because documents were left at the trade mark address for service and the impugned websites had been taken down after communications about the Court's orders, it was very likely that the proceedings had been brought to the second respondent's attention. The requirements for deemed service under r 10.48 and/or r 10.23 were satisfied, and substituted service was appropriate because communications to the first respondent should be brought to the second respondent's attention as its sole...

Jurisdiction
Australia
Judgment Date
19 February 2024
Procedural Posture
Interlocutory Application for Deemed Service and Substituted Service in Intellectual Property Proceeding / Determined on the Papers
Outcome
Interlocutory application allowed; Originating Documents deemed served on the second respondent on 6 February 2024; substituted service orders made; costs reserved.
Legal Topics
['deemed Service' 'substituted Service' 'personal Service Not Practicable' 'trade Marks' 'service Outside Australia']
['practice and Procedure' 'intellectual Property'] ['deemed Service' 'substituted Service' 'personal Service Not Practicable' 'trade Marks' 'service Outside Australia']

Case Brief

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Procedural Posture

Interlocutory Application for Deemed Service and Substituted Service in Intellectual Property Proceeding / Determined on the Papers

Legal Issues

  1. 1 ['Whether the originating application and statement of claim should be deemed served on the second respondent under r 10.48 and/or r 10.23 of the Federal Court Rules 2011 (Cth).' 'Whether personal service on the second respondent was not practicable.' 'Whether the Originating Documents had been brought to the attention of the second respondent.' 'Whether future service on the second respondent could be effected by email and mailing address associated with the first respondent.']

Ratio Decidendi

Because the applicants had made reasonable efforts to locate and personally serve the second respondent at registered addresses and through domain-related channels, further attempts were not practicable; and because documents were left at the trade mark address for service and the impugned websites had been taken down after communications about the Court's orders, it was very likely that the proceedings had been brought to the second respondent's attention. The requirements for deemed service under r 10.48 and/or r 10.23 were satisfied, and substituted service was appropriate because communications to the first respondent should be brought to the second respondent's attention as its sole...

Court Disposition

Interlocutory application allowed; Originating Documents deemed served on the second respondent on 6 February 2024; substituted service orders made; costs reserved.

Orders

  • ['Pursuant to r 10.48 and/or r 10.23 of the Federal Court Rules 2011 (Cth), the originating application dated 14 November 2023 and the statement of claim dated 14 November 2023, substantially in the form as filed with the Court, be deemed as having been served on the second respondent on 6 February 2024.' 'The...