Dunlop Aircraft Tyres Limited v The Goodyear Tire & Rubber Company (No 2) [2018] FCA 1443

Dunlop Aircraft Tyres Limited v The Goodyear Tire & Rubber Company (No 2) [2018] FCA 1443

The Court found that the refusal of the Calderbank offer was not unreasonable, thus indemnity costs were not justified. Given that both parties succeeded on different issues and considering the overlap between the two proceedings, a global costs order requiring payment of 40% of the costs by the unsuccessful party in each proceeding was appropriate to best reflect justice.

Jurisdiction
Australia
Judgment Date
20 September 2018
Procedural Posture
Trade Mark Infringement Proceeding and Appeal Against Registration Refusal / Post Judgment, Costs Determination
Outcome
Global costs order – each unsuccessful party to pay 40% of the costs of the successful party in each proceeding; requests for indemnity costs refused.
Legal Topics
['trade Marks' 'costs']
['intellectual Property'] ['trade Marks' 'costs']

Case Brief

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Procedural Posture

Trade Mark Infringement Proceeding and Appeal Against Registration Refusal / Post Judgment, Costs Determination

Legal Issues

  1. 1 ['Whether indemnity costs order appropriate due to refusal of Calderbank offer' 'Whether global costs order appropriate given overlap of issues and mixed success in related proceedings' 'How costs should be apportioned between parties given partial success in both proceedings']

Ratio Decidendi

The Court found that the refusal of the Calderbank offer was not unreasonable, thus indemnity costs were not justified. Given that both parties succeeded on different issues and considering the overlap between the two proceedings, a global costs order requiring payment of 40% of the costs by the unsuccessful party in each proceeding was appropriate to best reflect justice.

Court Disposition

Global costs order – each unsuccessful party to pay 40% of the costs of the successful party in each proceeding; requests for indemnity costs refused.

Orders

  • ["In NSD 356 of 2015: The applicants pay 40% of the respondents' costs of this proceeding." "In NSD 159 of 2015: The respondent pay 40% of the applicant's cost of this proceeding."]