McColm v Strudwicks Sportsworld Pty Ltd [2006] FCA 961

McColm v Strudwicks Sportsworld Pty Ltd [2006] FCA 961

There is a serious question to be tried as to infringement of the applicants' registered design. The similarities between the applicants' and respondents' kicking tees are clear, and there is evidence of ongoing infringement notwithstanding prior undertakings. Damages would not be an adequate remedy due to the potential for loss of market share and erosion of goodwill, and the balance of convenience favours granting injunctive relief.

Jurisdiction
Australia
Judgment Date
27 July 2006
Procedural Posture
Interlocutory Injunction Application / Interlocutory Application; Hearing and Orders Made
Outcome
Interlocutory injunction granted, costs reserved.
Legal Topics
['registered Designs' 'injunctive Relief' 'interlocutory Injunctions']
['intellectual Property' 'civil Procedure'] ['registered Designs' 'injunctive Relief' 'interlocutory Injunctions']

Case Brief

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Procedural Posture

Interlocutory Injunction Application / Interlocutory Application; Hearing and Orders Made

Legal Issues

  1. 1 ["Whether there is a serious question to be tried regarding infringement of the applicants' registered design" 'Whether damages are an adequate remedy for the applicants' 'Whether the balance of convenience favours the grant of an interlocutory injunction']

Ratio Decidendi

There is a serious question to be tried as to infringement of the applicants' registered design. The similarities between the applicants' and respondents' kicking tees are clear, and there is evidence of ongoing infringement notwithstanding prior undertakings. Damages would not be an adequate remedy due to the potential for loss of market share and erosion of goodwill, and the balance of convenience favours granting injunctive relief.

Court Disposition

Interlocutory injunction granted, costs reserved.

Orders

  • ["Upon the applicants' undertaking as to damages and compensation, respondents and their agents are restrained until trial or further order from manufacturing, importing, distributing, promoting, offering for sale or selling any article to which Registered Design 150767 or any fraudulent or obvious imitation has...