Elevate Brandpartners Ltd v Hammond [2019] FCA 1103

Elevate Brandpartners Ltd v Hammond [2019] FCA 1103

The undertaking terms proffered by the first, second and fourth respondents adequately addressed the applicants' concerns about use of Quay trade marks, Quay copyright material and representations linking Dream Bandits with Quay. There was no need or basis for relief against the third respondent because the applicants accepted he had not personally been involved in the complained-of conduct. As to the Kylie Jenner photograph, the evidence showed Ms Hammond owned the photograph and had Ms Jenner's consent to post it to her personal Instagram account; the prospect of Quay being liable to Jenner Inc because Ms Hammond, a non-executive director, privately used the photograph was particularly...

Jurisdiction
Australia
Judgment Date
27 June 2019
Procedural Posture
Application for Interlocutory Injunctive Relief in Proceedings Concerning Trade Mark and Copyright Infringement, Misleading Representations and Related Contractual Liability Concerns / Interlocutory Application Filed on 3 June 2019
Outcome
The interlocutory application was dismissed against the third respondent; the first, second and fourth respondents were directed to file and serve signed undertakings, upon which the interlocutory application would be dismissed against them; costs were reserved.
Legal Topics
['interlocutory Injunctions' 'trade Mark Infringement' 'copyright Infringement' 'australian Consumer Law Misleading or Deceptive Conduct' 'balance of Convenience' 'undertakings to the Court' "director's Duties" "shareholders' Deed"]
['practice and Procedure' 'intellectual Property' 'consumer Law' 'corporations'] ['interlocutory Injunctions' 'trade Mark Infringement' 'copyright Infringement' 'australian Consumer Law Misleading or Deceptive Conduct' 'balance of Convenience' 'undertakings to the Court' "director's Duties" "shareholders' Deed"]

Case Brief

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Procedural Posture

Application for Interlocutory Injunctive Relief in Proceedings Concerning Trade Mark and Copyright Infringement, Misleading Representations and Related Contractual Liability Concerns / Interlocutory Application Filed on 3 June 2019

Legal Issues

  1. 1 ['Whether the applicants had shown a serious question to be tried and that the balance of convenience favoured interlocutory injunctive relief.' "Whether the proffered undertakings by the first, second and fourth respondents adequately addressed the applicants' complaints about trade mark infringement, copyright infringement and alleged contraventions of the Australian Consumer Law." 'Whether any interlocutory relief should be granted against the third respondent in his personal capacity.' 'Whether Ms Hammond should be restrained from using a photograph and name of Kylie Jenner on Instagram or another public forum.']

Ratio Decidendi

The undertaking terms proffered by the first, second and fourth respondents adequately addressed the applicants' concerns about use of Quay trade marks, Quay copyright material and representations linking Dream Bandits with Quay. There was no need or basis for relief against the third respondent because the applicants accepted he had not personally been involved in the complained-of conduct. As to the Kylie Jenner photograph, the evidence showed Ms Hammond owned the photograph and had Ms Jenner's consent to post it to her personal Instagram account; the prospect of Quay being liable to Jenner Inc because Ms Hammond, a non-executive director, privately used the photograph was particularly...

Court Disposition

The interlocutory application was dismissed against the third respondent; the first, second and fourth respondents were directed to file and serve signed undertakings, upon which the interlocutory application would be dismissed against them; costs were reserved.

Orders

  • ["The applicants' interlocutory application filed on 3 June 2019 is dismissed as against the third respondent." 'The first, second and fourth respondents are directed to file and serve signed undertakings in the form of the draft undertakings furnished by them to the Associate of Stewart J by email on 26 June 2019...