Mobileworld Communications Pty Ltd v Q & Q Global Enterprise Pty Ltd [2003] FCA 1579

Mobileworld Communications Pty Ltd v Q & Q Global Enterprise Pty Ltd [2003] FCA 1579

Whilst the applicants were entitled to a permanent injunction restraining the respondents' infringing use of the relevant trade marks, the Court considered that, given the applicants' delay and the respondents' real commercial investment, it was appropriate to stay the injunction as to existing Gold Coast stores pending appeal and to impose conditions, including payment of $50,000 to the respondents as a set off and denying applicants account of profits or damages for the period prior to instituting proceedings. The tests for a stay of first instance orders and the grant of relief under s 126 of the Trade Marks Act 1995 (Cth) were properly applied.

Jurisdiction
Australia
Judgment Date
24 December 2003
Procedural Posture
Intellectual Property/trade Mark Infringement / Post Hearing—final Orders and Supplementary Orders After Trial
Outcome
Applicants granted permanent injunction (with stay as to Gold Coast stores); leave granted to appeal; various orders made as to costs and conditions attached to injunction.
Legal Topics
['trade Mark Infringement' 'injunctive Relief' 'stay of Orders' 'costs' 'conditions Under S 126 Trade Marks Act 1995 (cth)']
['intellectual Property' 'trade Marks'] ['trade Mark Infringement' 'injunctive Relief' 'stay of Orders' 'costs' 'conditions Under S 126 Trade Marks Act 1995 (cth)']

Case Brief

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Procedural Posture

Intellectual Property/trade Mark Infringement / Post Hearing—final Orders and Supplementary Orders After Trial

Legal Issues

  1. 1 ['Whether the respondents should be permanently restrained from using certain trade marks' 'Whether a stay should be granted in relation to injunction and/or costs' 'What conditions should attach to injunctive relief under s 126 of the Trade Marks Act 1995 (Cth)']

Ratio Decidendi

Whilst the applicants were entitled to a permanent injunction restraining the respondents' infringing use of the relevant trade marks, the Court considered that, given the applicants' delay and the respondents' real commercial investment, it was appropriate to stay the injunction as to existing Gold Coast stores pending appeal and to impose conditions, including payment of $50,000 to the respondents as a set off and denying applicants account of profits or damages for the period prior to instituting proceedings. The tests for a stay of first instance orders and the grant of relief under s 126 of the Trade Marks Act 1995 (Cth) were properly applied.

Court Disposition

Applicants granted permanent injunction (with stay as to Gold Coast stores); leave granted to appeal; various orders made as to costs and conditions attached to injunction.

Orders

  • ["Respondents permanently restrained from using specified trade marks and similar names so as to infringe applicants' trade marks." 'Leave granted to respondents to appeal specified orders.' 'Stay of injunction ordered pending appeal as to the existing four Gold Coast stores, subject to limits on use and...