E & J Gallo Winery v Lion Nathan Australia Pty Limited (No. 2) [2009] FCAFC 47

Lion Nathan Australia Pty Limited has infringed E & J Gallo Winery's trade mark; however, no declaration of infringement is made, and the question of damages or account of profits pursuant to s 126 is remitted to the primary judge for determination.

Parties: Appellant/cross Respondent: E & J Gallo Winery; Respondent/cross Appellant: Lion Nathan Australia Pty Limited ACN 008 596 370
Jurisdiction: Australia
Judgment Date: 15 April 2009
Procedural Posture: Appeal and Cross Appeal / Judgment and Orders After Reasons
Outcome: Appeal allowed in part, cross-appeal dismissed, orders varied, matter remitted to primary judge for consideration of relief and costs.
Legal Topics: Trade Mark Infringement, Relief Pursuant to Trade Marks Act 1995 (cth) S 126, Declaratory Relief, Damages, Account of Profits

Intellectual Property Trade Mark Infringement Relief Pursuant to Trade Marks Act 1995 (cth) S 126 Declaratory Relief Damages Account of Profits

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Parties

E & J Gallo Winery

Appellant/cross Respondent

Lion Nathan Australia Pty Limited ACN 008 596 370

Respondent/cross Appellant

Procedural Posture

Appeal and Cross Appeal / Judgment and Orders After Reasons

Legal Issues

1 Whether Lion Nathan Australia Pty Limited infringed E & J Gallo Winery's registered trade mark
2 Whether a declaration of infringement should be made
3 Whether damages or an account of profits should be ordered under s 126 of the Trade Marks Act 1995 (Cth)

Ratio Decidendi

Court Disposition

Appeal allowed in part, cross-appeal dismissed, orders varied, matter remitted to primary judge for consideration of relief and costs.

Orders

Appeal allowed in part.
Orders 1 and 2 of the primary judge of 27 June 2008 set aside.