Findlay, W. & Ors v Cartona Pty Ltd (trading as Kinselas) & Ors [1987] FCA 558

Findlay, W. & Ors v Cartona Pty Ltd (trading as Kinselas) & Ors [1987] FCA 558

It is misleading and deceptive for the respondents to state that 'It's my Party' features 'The Fabulous Singlettes' when none of the applicants are involved, as the applicants have established reputation and distinctiveness in connection with that name.

Parties
First Applicant: Wayne Findlay; Second Applicant: Naomi Eyers; Third Applicant: Lisa Shipley; First Respondent: Cartona Pty. Limited trading as Kinselas; Second Respondent: E. A. Bilson Pty. Limited trading as Kinselas; Third Respondent: Anthony Cranes; Fourth Respondent: Graham Blundell; Fifth Respondent: Sheryl Black; Sixth Respondent: Karen Johns
Jurisdiction
Australia
Judgment Date
19 October 1987
Procedural Posture
Interlocutory Application for Injunction / Interlocutory
Outcome
Interlocutory injunctions granted; undertaking as to damages continuing; costs to the applicants; application for security for damages declined; further hearing set.
Legal Topics
Misleading and Deceptive Conduct, Trade Practices Act 1974 S.52, Passing Off, Interlocutory Injunction
Intellectual Property Consumer Protection Misleading and Deceptive Conduct Trade Practices Act 1974 S.52 Passing Off Interlocutory Injunction

Case Brief

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Parties

Wayne Findlay

First Applicant

Naomi Eyers

Second Applicant

Lisa Shipley

Third Applicant

Cartona Pty. Limited trading as Kinselas

First Respondent

E. A. Bilson Pty. Limited trading as Kinselas

Second Respondent

Anthony Cranes

Third Respondent

Graham Blundell

Fourth Respondent

Sheryl Black

Fifth Respondent

Karen Johns

Sixth Respondent

Procedural Posture

Interlocutory Application for Injunction / Interlocutory

Legal Issues

  1. 1 Whether use of the name 'The Fabulous Singlettes' by respondents is misleading and deceptive
  2. 2 Whether respondents should be restrained from using the name 'The Fabulous Singlettes' in promotion and performance

Ratio Decidendi

It is misleading and deceptive for the respondents to state that 'It's my Party' features 'The Fabulous Singlettes' when none of the applicants are involved, as the applicants have established reputation and distinctiveness in connection with that name.

Court Disposition

Interlocutory injunctions granted; undertaking as to damages continuing; costs to the applicants; application for security for damages declined; further hearing set.

Orders

  • The fifth and sixth respondents restrained from making any reference on the Ray Martin Midday Show to 'The Fabulous Singlettes'.
  • The first, second, third, fourth, fifth, and sixth respondents restrained from promoting or advertising the show 'It's my Party' as involving 'The Fabulous Singlettes' or any name including 'Singlettes'.