Top Heavy Pty Ltd v Killin, Paul Joseph [1996] FCA 295

Top Heavy Pty Ltd v Killin, Paul Joseph [1996] FCA 295

The applicant's use of the phrase 'Chill Out' on T-shirts is not use as a badge of trade origin, and therefore not use as a trade mark under the Trade Marks Act. The designs do not indicate provenance but convey a message about relaxation. Consequently, there is no infringement.

Jurisdiction
Australia
Judgment Date
18 April 1996
Procedural Posture
Trade Mark Infringement and Groundless Threats Proceedings / Separate Question Determination Prior to All Other Issues
Outcome
Applicant's use of the phrase 'Chill Out' is not trade mark use; respondent's cross-claim dismissed; applicant entitled to declaration of groundless threat; respondent to pay applicant's costs of the question for separate determination.
Legal Topics
['trade Mark Infringement' 'trade Mark Use' 'groundless Threats' 'trade Mark Cancellation' 'deceptive Similarity']
['intellectual Property Law'] ['trade Mark Infringement' 'trade Mark Use' 'groundless Threats' 'trade Mark Cancellation' 'deceptive Similarity']

Case Brief

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Procedural Posture

Trade Mark Infringement and Groundless Threats Proceedings / Separate Question Determination Prior to All Other Issues

Legal Issues

  1. 1 ["Whether the use of the phrase 'Chill Out' on T-shirts is use as a trade mark" "Whether 'Chill Out' is substantially identical with, or deceptively similar to the registered mark" "Whether 'Chill Out' has a meaning or is purely emotive" "Whether the applicant's use is indicative of trade origin or merely descriptive" "Whether the respondent's letter constitutes a groundless threat"]

Ratio Decidendi

The applicant's use of the phrase 'Chill Out' on T-shirts is not use as a badge of trade origin, and therefore not use as a trade mark under the Trade Marks Act. The designs do not indicate provenance but convey a message about relaxation. Consequently, there is no infringement.

Court Disposition

Applicant's use of the phrase 'Chill Out' is not trade mark use; respondent's cross-claim dismissed; applicant entitled to declaration of groundless threat; respondent to pay applicant's costs of the question for separate determination.

Orders

  • ["The question for separate determination answered 'no' (no trade mark use)." "Respondent's cross-claim dismissed." "Respondent to pay applicant's costs of the question for separate determination." 'Declaration regarding groundless threat to be heard as to precise orders.']