South Australian Brewing Company Pty Ltd v Carlton & United Breweries Ltd [2001] FCA 994

South Australian Brewing Company Pty Ltd v Carlton & United Breweries Ltd [2001] FCA 994

The respondent's undertaking to take all available steps by 31 July 2001 to collect for destruction the relevant promotional material and packaged beer, and to file an affidavit by 2 August 2001 detailing those steps and estimated quantities, adequately addressed the need for retrieval without a further order. Corrective advertising was unnecessary because recovery steps meant there was no real future risk of public deception and such advertising could complicate damages. Taking into account each party's mixed success, the overlap of issues and the proceedings after the cross claim was introduced, the fair costs order was that the respondent pay 25 per cent of the applicant's costs...

Jurisdiction
Australia
Judgment Date
24 July 2001
Procedural Posture
Trade Practices Act 1974 (cth) Proceeding Including S 52 Claims and a Cross Claim for Expungement of the Showdown Word Mark / Ex Tempore Reasons on Outstanding Issues of Retrieval of Impugned Material, Corrective Advertising and Costs After Orders Made on 13 July 2001
Outcome
Respondent's undertaking accepted; corrective advertising refused; respondent ordered to pay 25 per cent of the applicant's costs of the application generally incurred after 15 May 2001.
Legal Topics
['misleading or Deceptive Conduct' 'corrective Advertising' 'costs' 'undertakings' 'trade Marks']
['trade Practices' 'intellectual Property' 'civil Procedure'] ['misleading or Deceptive Conduct' 'corrective Advertising' 'costs' 'undertakings' 'trade Marks']

Case Brief

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Procedural Posture

Trade Practices Act 1974 (cth) Proceeding Including S 52 Claims and a Cross Claim for Expungement of the Showdown Word Mark / Ex Tempore Reasons on Outstanding Issues of Retrieval of Impugned Material, Corrective Advertising and Costs After Orders Made on 13 July 2001

Legal Issues

  1. 1 ['Whether the Court should make an additional order requiring the respondent to retrieve impugned promotional material and packaged beer from retailers.' 'Whether the respondent should be directed to undertake corrective advertising.' 'What costs order should be made.']

Ratio Decidendi

The respondent's undertaking to take all available steps by 31 July 2001 to collect for destruction the relevant promotional material and packaged beer, and to file an affidavit by 2 August 2001 detailing those steps and estimated quantities, adequately addressed the need for retrieval without a further order. Corrective advertising was unnecessary because recovery steps meant there was no real future risk of public deception and such advertising could complicate damages. Taking into account each party's mixed success, the overlap of issues and the proceedings after the cross claim was introduced, the fair costs order was that the respondent pay 25 per cent of the applicant's costs...

Court Disposition

Respondent's undertaking accepted; corrective advertising refused; respondent ordered to pay 25 per cent of the applicant's costs of the application generally incurred after 15 May 2001.

Orders

  • ["The Court noted the respondent's undertaking that on or before 4.00 pm on Tuesday, 31 July 2001, it would take all available steps to collect, for destruction, from the retailers to whom it had sent promotional material and/or packaged beer featuring the photograph referred to in paragraph 1(b) of the orders made...