Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd [2015] FCA 746

Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd [2015] FCA 746

Given both sides' partial success, but the respondents' substantial success overall, a broad brush approach is justified and the applicants should pay 40% of the respondents' costs, with set-off to account for 70%/30% apportionment from both sides' successes and failures.

Parties
First Applicant: Accor Australia & New Zealand Hospitality Pty Ltd; Second Applicant: Cairns Harbour Lights Pty Ltd; First Respondent: Liv Pty Ltd ACN 093 688 576; Second Respondent: Ivana Patalano; Third Respondent: Elise Wyandra Warring also known as Elise Bradnam; First Cross Respondent: Cairns Harbour Lights Pty Ltd; Second Cross Respondent: Accor Australia & New Zealand Hospitality Pty Ltd; First Cross Claimant: Elise Wyandra Warring also known as Elise Bradnam; Second Cross Claimant: Ivana Patalano
Jurisdiction
Australia
Judgment Date
22 July 2015
Procedural Posture
Civil / Post Trial Costs and Apportionment Determination
Outcome
Applicants ordered to pay 40% of the respondents' costs; principal application and cross-claim each partially successful; specific orders for rectification, injunctions and stays issued.
Legal Topics
Trade Marks, Costs, Rectification of Register, Infringement, Misleading or Deceptive Conduct
Intellectual Property Civil Procedure Trade Marks Costs Rectification of Register Infringement Misleading or Deceptive Conduct

Case Brief

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Parties

Accor Australia & New Zealand Hospitality Pty Ltd

First Applicant

Cairns Harbour Lights Pty Ltd

Second Applicant

Liv Pty Ltd ACN 093 688 576

First Respondent

Ivana Patalano

Second Respondent

Elise Wyandra Warring also known as Elise Bradnam

Third Respondent

Cairns Harbour Lights Pty Ltd

First Cross Respondent

Accor Australia & New Zealand Hospitality Pty Ltd

Second Cross Respondent

Elise Wyandra Warring also known as Elise Bradnam

First Cross Claimant

Ivana Patalano

Second Cross Claimant

Procedural Posture

Civil / Post Trial Costs and Apportionment Determination

Legal Issues

  1. 1 What is the appropriate order for costs when each party has had partial success in principal applications and cross-claims?
  2. 2 Should the court make an apportionment of costs based on issues or take a broad brush approach?

Ratio Decidendi

Given both sides' partial success, but the respondents' substantial success overall, a broad brush approach is justified and the applicants should pay 40% of the respondents' costs, with set-off to account for 70%/30% apportionment from both sides' successes and failures.

Court Disposition

Applicants ordered to pay 40% of the respondents' costs; principal application and cross-claim each partially successful; specific orders for rectification, injunctions and stays issued.

Orders

  • Register be rectified by cancelling Australian Trade Mark No 1295197 (Cairns Harbour Lights) under s 88(1)(a) of the Trade Marks Act 1995 (Cth)
  • Register be rectified by amending Australian Trade Mark No 1281759 (Harbour Lights) by removing specified services in class 36 under s 88(1)(b)