Suntory Ltd v Daiquiri Co Pty Ltd [2001] FCA 926

Suntory Ltd v Daiquiri Co Pty Ltd [2001] FCA 926

The second respondent had not filed an appearance, but the evidence showed he received reasonable notice of the motion and the orders sought by express post and by his telephone call to the applicants' solicitor, and chose not to participate. Although he asserted bankruptcy, the applicants no longer pursued damages or an account of profits against him, so the orders sought were not enforcement of a remedy in respect of a provable debt. The evidence concerning the registered Illusion trade mark, the Daiquiri Factory brochure and the business name registration justified declaratory and restraining orders. It was therefore appropriate to order service nunc pro tunc by prepaid post and to...

Jurisdiction
Australia
Judgment Date
17 July 2001
Procedural Posture
Trade Mark Infringement Proceeding / Notice of Motion for Judgment and Orders Against the Second Respondent; Undertakings Noted From the First and Third Respondents
Outcome
The Court declared that the second respondent infringed registered trade mark no. 680413, made injunctive, delivery up, verification and costs orders against him, ordered service of the notice of motion nunc pro tunc by prepaid post, delayed entry of the orders pending written notice, and noted undertakings by the...
Legal Topics
['trade Mark Infringement' 'injunctive Relief' 'default Judgment' 'service of Notice of Motion' 'bankruptcy Stay for Provable Debts' 'undertakings to the Court']
['intellectual Property' 'trade Marks' 'bankruptcy' 'civil Procedure'] ['trade Mark Infringement' 'injunctive Relief' 'default Judgment' 'service of Notice of Motion' 'bankruptcy Stay for Provable Debts' 'undertakings to the Court']

Case Brief

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Procedural Posture

Trade Mark Infringement Proceeding / Notice of Motion for Judgment and Orders Against the Second Respondent; Undertakings Noted From the First and Third Respondents

Legal Issues

  1. 1 ["Whether the first and third respondents' undertakings should be noted by the Court." 'Whether the notice of motion against the second respondent could be treated as served by prepaid post nunc pro tunc despite non-compliance with personal service requirements.' 'Whether any bankruptcy of the second respondent prevented the Court from making the non-monetary orders sought.' 'Whether the evidence justified a declaration and restraints against the second respondent for infringement of registered trade mark no. 680413.']

Ratio Decidendi

The second respondent had not filed an appearance, but the evidence showed he received reasonable notice of the motion and the orders sought by express post and by his telephone call to the applicants' solicitor, and chose not to participate. Although he asserted bankruptcy, the applicants no longer pursued damages or an account of profits against him, so the orders sought were not enforcement of a remedy in respect of a provable debt. The evidence concerning the registered Illusion trade mark, the Daiquiri Factory brochure and the business name registration justified declaratory and restraining orders. It was therefore appropriate to order service nunc pro tunc by prepaid post and to...

Court Disposition

The Court declared that the second respondent infringed registered trade mark no. 680413, made injunctive, delivery up, verification and costs orders against him, ordered service of the notice of motion nunc pro tunc by prepaid post, delayed entry of the orders pending written notice, and noted undertakings by the...

Orders

  • ['The second respondent has infringed registered trade mark no. 680413.' 'The notice of motion filed on 10 July 2001 be served on the second respondent by sending a copy thereof by prepaid post no later than 10 July 2001.' 'The second respondent, whether by himself, his servants, agents or otherwise, be restrained...