Inxs Hutchence, M.K. v. South Seas Bubble Company Pty Ltd t/as Bootleg T-Shirts & Ors [1986] FCA 48

Inxs Hutchence, M.K. v. South Seas Bubble Company Pty Ltd t/as Bootleg T-Shirts & Ors [1986] FCA 48

The sale by the respondents of T-shirts closely resembling and bearing the names, symbols, and designs associated with INXS constitutes conduct likely to mislead or deceive the relevant public as to sponsorship or approval, in breach of s.52 and s.53(c) of the Trade Practices Act; disclaimers and trading name 'Bootleg' are insufficient to neutralize this. The conduct also constitutes classic passing off. Copyright protection subsists only in respect of 'The Swing' T-shirt, not the 'flag' or 'Listen Like Thieves' T-shirts, due to s.77 excluding protection where the designs have been applied to T-shirts and sold in quantity. Balance of convenience favours continuation of interlocutory...

Parties
First Applicant: Michael Kelland Hutchence, Andrew Charles Farriss, Timothy William Farriss, Jonathan James Farriss, Kirk Pengilly, Garry William Beers all t/as INXS; Second Applicant: Dustbarko Pty Limited t/as MMA Management; Third Applicant: Starstruck Merchandising Pty Limited; Fourth Applicant: Hariklia Heristanidis; Fifth Applicant: Philip Mortlock; First Respondent: South Seas Bubble Company Pty Limited t/as Bootleg T-Shirts; Second Respondent: Daphne Vera Pearson; Third Respondent: Desmond Pearson; Fourth Respondent: Ivy Printing Pty Limited
Jurisdiction
Australia
Judgment Date
28 February 1986
Procedural Posture
Application for Interlocutory Injunction / Ruling on Continuation of Interlocutory Injunction
Outcome
Interlocutory injunction continued in part; varied orders made.
Legal Topics
Section 52 and 53(c) Misleading/deceptive Conduct, Passing Off, Copyright Infringement and Designs Act Exclusion, Balance of Convenience for Interlocutory Injunction
Trade Practices Intellectual Property Torts Equity Section 52 and 53(c) Misleading/deceptive Conduct Passing Off Copyright Infringement and Designs Act Exclusion Balance of Convenience for Interlocutory Injunction

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Parties

Michael Kelland Hutchence, Andrew Charles Farriss, Timothy William Farriss, Jonathan James Farriss, Kirk Pengilly, Garry William Beers all t/as INXS

First Applicant

Dustbarko Pty Limited t/as MMA Management

Second Applicant

Starstruck Merchandising Pty Limited

Third Applicant

Hariklia Heristanidis

Fourth Applicant

Philip Mortlock

Fifth Applicant

South Seas Bubble Company Pty Limited t/as Bootleg T-Shirts

First Respondent

Daphne Vera Pearson

Second Respondent

Desmond Pearson

Third Respondent

Ivy Printing Pty Limited

Fourth Respondent

Procedural Posture

Application for Interlocutory Injunction / Ruling on Continuation of Interlocutory Injunction

Legal Issues

  1. 1 Whether respondents' sale of T-shirts bearing INXS designs constitutes misleading or deceptive conduct under s.52 Trade Practices Act 1974
  2. 2 Whether there is a false representation of sponsorship or approval under s.53(c) Trade Practices Act
  3. 3 Whether passing off has occurred via wrongful appropriation of applicants' name and reputation

Ratio Decidendi

The sale by the respondents of T-shirts closely resembling and bearing the names, symbols, and designs associated with INXS constitutes conduct likely to mislead or deceive the relevant public as to sponsorship or approval, in breach of s.52 and s.53(c) of the Trade Practices Act; disclaimers and trading name 'Bootleg' are insufficient to neutralize this. The conduct also constitutes classic passing off. Copyright protection subsists only in respect of 'The Swing' T-shirt, not the 'flag' or 'Listen Like Thieves' T-shirts, due to s.77 excluding protection where the designs have been applied to T-shirts and sold in quantity. Balance of convenience favours continuation of interlocutory...

Court Disposition

Interlocutory injunction continued in part; varied orders made.

Orders

  • Order 1 made on 22 January 1986 dissolved.
  • First and fourth respondents restrained, until further order, from producing, advertising, promoting, offering for sale, or selling T-shirts bearing (a) 'The Swing' design or any part thereof; (b) the 'flag' design or 'Listen Like Thieves' design or any part thereof.