Luigi, Gavioli & ors v G.J. Coles & Co Pty Ltd & anor [1983] FCA 399

Luigi, Gavioli & ors v G.J. Coles & Co Pty Ltd & anor [1983] FCA 399

The interlocutory injunctions were refused because, although there was a serious question to be tried, much of the applicants' asserted get-up was descriptive, the market contained a range of Lambrusco wines, and the reasonable consumer would not readily take the respondents' product to be the applicants' product; in any event, the balance of convenience favoured refusal because the applicants' loss could largely be assessed from sales records, while the respondents' losses from an injunction during their advertising and promotional campaign would be greater and more difficult to assess.

Jurisdiction
Australia
Judgment Date
21 December 1983
Procedural Posture
Application for Interlocutory Injunction Alleging Misleading or Deceptive Conduct Under Trade Practices Act 1974 S.52 / Interlocutory Application
Outcome
The applicants' claim for interlocutory injunctions was dismissed.
Legal Topics
['misleading or Deceptive Conduct' 'interlocutory Injunction' 'wine Labelling and Get Up' 'descriptive Trade Names' 'balance of Convenience' 'irreparable Damage']
['trade Practices' 'consumer Protection'] ['misleading or Deceptive Conduct' 'interlocutory Injunction' 'wine Labelling and Get Up' 'descriptive Trade Names' 'balance of Convenience' 'irreparable Damage']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Interlocutory Injunction Alleging Misleading or Deceptive Conduct Under Trade Practices Act 1974 S.52 / Interlocutory Application

Legal Issues

  1. 1 ['Whether the labelling and get-up of Mondo Lambrusco was misleadingly or deceptively similar to Lambrusco Amabile in contravention of Trade Practices Act 1974 s.52.' 'Whether the words "Lambrusco" and "Amabile" were merely descriptive rather than distinctive of the applicants\' product.' 'Whether the applicants established a prima facie case or serious question to be tried for interlocutory relief.' 'Whether the balance of convenience favoured granting or refusing interlocutory injunctions before Christmas trading.']

Ratio Decidendi

The interlocutory injunctions were refused because, although there was a serious question to be tried, much of the applicants' asserted get-up was descriptive, the market contained a range of Lambrusco wines, and the reasonable consumer would not readily take the respondents' product to be the applicants' product; in any event, the balance of convenience favoured refusal because the applicants' loss could largely be assessed from sales records, while the respondents' losses from an injunction during their advertising and promotional campaign would be greater and more difficult to assess.

Court Disposition

The applicants' claim for interlocutory injunctions was dismissed.

Orders

  • ["The applicants' claim for interlocutory injunctions against the respondents is dismissed." 'The parties have liberty to apply as to the costs of the application for interlocutory injunctions.' 'The parties have liberty to apply for directions as to the hearing of the application.']