Melhero Pty Ltd & Anor v Club X Pty Ltd & Ors [1996] FCA 15

Melhero Pty Ltd & Anor v Club X Pty Ltd & Ors [1996] FCA 15

Neither party is granted interlocutory relief because: (1) the applicants' case for injunctive relief is not the strongest, their undertaking as to damages is unsatisfactory due to poor financial position, and there is a prospect of early final hearing; (2) the respondents, while holding a registered trade mark prima facie entitling them to an injunction, face a serious question regarding the possible rectification and cancellation of the registration given applicants' claim of a prior reputation; therefore, it is not appropriate to pre-empt the rectification question with interlocutory relief.

Parties
First Applicant: Melhero Pty Limited (ACN 055 880 469); Second Applicant: Mitchell Products Pty Limited (ACN 053 664 010); First Respondent: Club X Pty Limited (ACN 006 864 688); Second Respondent: Walter Dell Pty Limited (ACN 006 046 117); Third Respondent: Ashwood Way Pty Limited (ACN 005 757 942); Fourth Respondent: Shaft Theatres Pty Limited (ACN 005 354 414)
Jurisdiction
Australia
Judgment Date
15 January 1996
Procedural Posture
Application for Interlocutory Relief / Interlocutory (hearing and Orders on Interlocutory Relief)
Outcome
Interlocutory relief refused to both parties. Costs reserved.
Legal Topics
Trade Mark Infringement, Passing Off, Misleading or Deceptive Conduct, Interlocutory Injunctions
Intellectual Property Trade Practices Trade Mark Infringement Passing Off Misleading or Deceptive Conduct Interlocutory Injunctions

Case Brief

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Parties

Melhero Pty Limited (ACN 055 880 469)

First Applicant

Mitchell Products Pty Limited (ACN 053 664 010)

Second Applicant

Club X Pty Limited (ACN 006 864 688)

First Respondent

Walter Dell Pty Limited (ACN 006 046 117)

Second Respondent

Ashwood Way Pty Limited (ACN 005 757 942)

Third Respondent

Shaft Theatres Pty Limited (ACN 005 354 414)

Fourth Respondent

Procedural Posture

Application for Interlocutory Relief / Interlocutory (hearing and Orders on Interlocutory Relief)

Legal Issues

  1. 1 Whether applicants or respondents should have exclusive right to use 'Adam & Eve' name pending final hearing
  2. 2 Whether applicants' undertaking as to damages is satisfactory for interlocutory relief
  3. 3 Whether the respondents' registered trade mark entitles them to interlocutory relief given applicants' proposed rectification application

Ratio Decidendi

Neither party is granted interlocutory relief because: (1) the applicants' case for injunctive relief is not the strongest, their undertaking as to damages is unsatisfactory due to poor financial position, and there is a prospect of early final hearing; (2) the respondents, while holding a registered trade mark prima facie entitling them to an injunction, face a serious question regarding the possible rectification and cancellation of the registration given applicants' claim of a prior reputation; therefore, it is not appropriate to pre-empt the rectification question with interlocutory relief.

Court Disposition

Interlocutory relief refused to both parties. Costs reserved.

Orders

  • Interlocutory relief declined to each party.
  • Directions given for preparation for final hearing.