S.P.I. Spirits (Cyprus) Ltd v Diageo Australia Ltd (No. 6) [2008] FCA 710

S.P.I. Spirits (Cyprus) Ltd v Diageo Australia Ltd (No. 6) [2008] FCA 710

Leave to amend was refused because the proposed constructive trust claim depended on pleaded conclusions from s 44 of the Trade Marks Act 1995 (Cth), but s 44 has nothing to say with respect to and does not contribute to any claim that Spirits holds the trade mark applications on constructive trust for FKP. The conclusions pleaded in the draft SFACC did not follow and no other basis for the constructive trust claim was relied on.

Jurisdiction
Australia
Judgment Date
22 May 2008
Procedural Posture
Trade Mark Proceeding; Notice of Motion for Leave to Amend Cross Claim / Motion for Leave to File and Serve a Second Further Amended Cross Claim
Outcome
Motion dismissed with costs.
Legal Topics
['leave to Amend Pleadings' 'constructive Trust Claim' 'trade Mark Applications' 'trade Mark Ownership' 'section 44 Trade Marks Act 1995 (cth)']
['intellectual Property' 'trade Marks' 'equity' 'civil Procedure'] ['leave to Amend Pleadings' 'constructive Trust Claim' 'trade Mark Applications' 'trade Mark Ownership' 'section 44 Trade Marks Act 1995 (cth)']

Case Brief

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Procedural Posture

Trade Mark Proceeding; Notice of Motion for Leave to Amend Cross Claim / Motion for Leave to File and Serve a Second Further Amended Cross Claim

Legal Issues

  1. 1 ['Whether the cross-claimants should be granted leave to file and serve a Second Further Amended Cross-Claim incorporating a constructive trust claim in respect of trade mark applications.' 'Whether the proposed constructive trust pleading was so obviously futile that it should not be allowed.' 'Whether reliance on s 44 of the Trade Marks Act 1995 (Cth) could support the pleaded conclusion that Spirits held the trade mark applications on constructive trust for FKP.']

Ratio Decidendi

Leave to amend was refused because the proposed constructive trust claim depended on pleaded conclusions from s 44 of the Trade Marks Act 1995 (Cth), but s 44 has nothing to say with respect to and does not contribute to any claim that Spirits holds the trade mark applications on constructive trust for FKP. The conclusions pleaded in the draft SFACC did not follow and no other basis for the constructive trust claim was relied on.

Court Disposition

Motion dismissed with costs.

Orders

  • ['The motion by notice dated and filed 21 February 2008 for orders including an order that the cross-claimants have leave to file a Second Further Amended Cross-Claim in the form identified in Ex. 1 be dismissed.' "The cross-claimants pay the applicants' costs of the motion."]