A Nelson & Co Limited v Martin & Pleasance Pty Ltd [2021] FCA 228

A Nelson & Co Limited v Martin & Pleasance Pty Ltd [2021] FCA 228

There is a serious question to be tried as to whether the Respondents are passing off their products as those of the Applicants and/or engaging in conduct likely to mislead or deceive under ss 18 and 29 of the Australian Consumer Law; the balance of convenience favours granting interlocutory relief and damages would not be an adequate remedy.

Parties
First Applicant: A Nelson & Co Limited; Second Applicant: Bach Flower Remedies Limited; First Respondent: Martin & Pleasance Pty Ltd (ACN 006 935 888); Second Respondent: Aloe Vera Industries Pty Ltd (ACN 063 710 832); Third Respondent: Martin & Pleasance Wholesale Pty Ltd
Jurisdiction
Australia
Judgment Date
17 March 2021
Procedural Posture
Application for Interlocutory Relief / Interlocutory; Orders Granting Interlocutory Injunction
Outcome
Interlocutory injunction granted; costs in the cause; Norwich Pharmacal order refused
Legal Topics
Trade Mark Infringement, Passing Off, Misleading or Deceptive Conduct, Interlocutory Injunction
Intellectual Property Consumer Law Tort Trade Mark Infringement Passing Off Misleading or Deceptive Conduct Interlocutory Injunction

Case Brief

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Parties

A Nelson & Co Limited

First Applicant

Bach Flower Remedies Limited

Second Applicant

Martin & Pleasance Pty Ltd (ACN 006 935 888)

First Respondent

Aloe Vera Industries Pty Ltd (ACN 063 710 832)

Second Respondent

Martin & Pleasance Wholesale Pty Ltd

Third Respondent

Procedural Posture

Application for Interlocutory Relief / Interlocutory; Orders Granting Interlocutory Injunction

Legal Issues

  1. 1 Whether there is a serious question to be tried regarding passing off, misleading or deceptive conduct, and trade mark infringement; balance of convenience for granting interlocutory relief; adequacy of damages

Ratio Decidendi

There is a serious question to be tried as to whether the Respondents are passing off their products as those of the Applicants and/or engaging in conduct likely to mislead or deceive under ss 18 and 29 of the Australian Consumer Law; the balance of convenience favours granting interlocutory relief and damages would not be an adequate remedy.

Court Disposition

Interlocutory injunction granted; costs in the cause; Norwich Pharmacal order refused

Orders

  • Martin & Pleasance Wholesale Pty Ltd joined as Third Respondent.
  • Upon Applicants giving the usual undertaking as to damages, Respondents restrained from marketing, promoting, or supplying products using the word 'RestQ' or the specified packaging; required to deactivate relevant social media accounts and website within 24 hours.