Christian v Société Des Produits Nestlé S.A. (No 2) [2014] FCA 1159

Christian v Société Des Produits Nestlé S.A. (No 2) [2014] FCA 1159

Leave to appeal was granted on two grounds: (1) whether the Federal Circuit Court erred by taking into account the first A-SASHI logo as evidence in determining trade mark infringement, and (2) whether the proviso in s 120(2) of the Trade Marks Act 1995 (Cth) was correctly applied. Leave was refused on other grounds as they related to procedural matters, were not previously raised, or were not appropriately the subject of appeal.

Parties
First Applicant: James William Christian; Second Applicant: Mark Charles Christian; First Respondent: Société Des Produits Nestlé S.A.; Second Respondent: Nestlé Australia Ltd ACN 000 011 316
Jurisdiction
Australia
Judgment Date
28 October 2014
Procedural Posture
Application for Leave to Appeal / Interlocutory – Leave to Appeal From Federal Circuit Court Orders on Trade Mark Infringement and Injunctive Relief
Outcome
Leave to appeal granted in part
Legal Topics
Leave to Appeal, Injunctions, Trade Mark Infringement, Application of S 120(2) Trade Marks Act, Appeal Grounds, Stay Applications
Practice and Procedure Intellectual Property Leave to Appeal Injunctions Trade Mark Infringement Application of S 120(2) Trade Marks Act Appeal Grounds Stay Applications

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Parties

James William Christian

First Applicant

Mark Charles Christian

Second Applicant

Société Des Produits Nestlé S.A.

First Respondent

Nestlé Australia Ltd ACN 000 011 316

Second Respondent

Procedural Posture

Application for Leave to Appeal / Interlocutory – Leave to Appeal From Federal Circuit Court Orders on Trade Mark Infringement and Injunctive Relief

Legal Issues

  1. 1 Whether leave to appeal should be granted from Federal Circuit Court orders regarding injunctive relief for trade mark infringement
  2. 2 Whether Federal Circuit Court erred in determining trade mark infringement by considering the first A-SASHI logo
  3. 3 Whether the court correctly applied the proviso in s 120(2) of the Trade Marks Act 1995 (Cth)

Ratio Decidendi

Leave to appeal was granted on two grounds: (1) whether the Federal Circuit Court erred by taking into account the first A-SASHI logo as evidence in determining trade mark infringement, and (2) whether the proviso in s 120(2) of the Trade Marks Act 1995 (Cth) was correctly applied. Leave was refused on other grounds as they related to procedural matters, were not previously raised, or were not appropriately the subject of appeal.

Court Disposition

Leave to appeal granted in part

Orders

  • Leave granted to appeal from Federal Circuit Court orders of 3 September 2014 (orders 1, 2, 3) and 17 October 2014 (orders 2, 3, 4, 5, 6, 7) on identified grounds.
  • Appeal to be listed for hearing in Full Court and Appellate sitting period from 9 February to 6 March 2015.