The Agency Group Australia Limited v H.A.S. Real Estate Pty Ltd [2023] FCA 482

The Agency Group Australia Limited v H.A.S. Real Estate Pty Ltd [2023] FCA 482

The use by the respondents of 'THE NORTH AGENCY' and the N Logo is not deceptively similar to the applicants' marks due to the striking and distinctive inclusion of 'NORTH' and the visual and conceptual distinctions in the device logos; the marks and get-up are not likely to mislead or deceive the relevant class of consumers, nor do they constitute passing off. Descriptive or common industry elements cannot be monopolised. No infringement or contravention is established.

Parties
First Applicant: The Agency Group Australia Limited; Second Applicant: Ausnet Real Estate Services Pty Ltd; Third Applicant: The Agency Sales NSW Pty Ltd; First Respondent: H.A.S. Real Estate Pty Ltd; Second Respondent: Christopher Mark Aldren; Third Respondent: Tulouna Sila
Jurisdiction
Australia
Judgment Date
17 May 2023
Procedural Posture
Civil / Trial Judgment
Outcome
Application dismissed
Legal Topics
Trade Mark Infringement, Misleading or Deceptive Conduct, Passing Off, Trade Marks Act 1995 (cth), Australian Consumer Law, Declaratory and Injunctive Relief, Descriptive Trade Names, Get Up, Pleadings and Practice
Intellectual Property Consumer Law Trade Mark Infringement Misleading or Deceptive Conduct Passing Off Trade Marks Act 1995 (cth) Australian Consumer Law Declaratory and Injunctive Relief +3 more

Case Brief

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Parties

The Agency Group Australia Limited

First Applicant

Ausnet Real Estate Services Pty Ltd

Second Applicant

The Agency Sales NSW Pty Ltd

Third Applicant

H.A.S. Real Estate Pty Ltd

First Respondent

Christopher Mark Aldren

Second Respondent

Tulouna Sila

Third Respondent

Procedural Posture

Civil / Trial Judgment

Legal Issues

  1. 1 Whether respondents infringed registered trade marks under s 120(1) of the Trade Marks Act 1995 (Cth)
  2. 2 Whether respondents engaged in misleading or deceptive conduct in contravention of s 18 and s 29(1)(g), (h), (k) of the Australian Consumer Law
  3. 3 Whether respondents committed passing off

Ratio Decidendi

The use by the respondents of 'THE NORTH AGENCY' and the N Logo is not deceptively similar to the applicants' marks due to the striking and distinctive inclusion of 'NORTH' and the visual and conceptual distinctions in the device logos; the marks and get-up are not likely to mislead or deceive the relevant class of consumers, nor do they constitute passing off. Descriptive or common industry elements cannot be monopolised. No infringement or contravention is established.

Court Disposition

Application dismissed

Orders

  • The originating application be dismissed.
  • The parties file and serve written submissions on the question of costs (not exceeding 5 pages), together with any affidavit or affidavits in support by 24 May 2023.