JLCS Pty Ltd v Squires Loft City Steakhouse Pty Ltd (No 2) [2009] FCA 8

JLCS Pty Ltd v Squires Loft City Steakhouse Pty Ltd (No 2) [2009] FCA 8

The websites were designed so that the City Grill Room took the benefit of the Squires Loft mark, and the claimed explanation that they merely showed a factual association was rejected. Although the conduct fell outside the existing injunctions because City Grill Room itself was not presently using the mark, the use by others on its behalf was a transparent attempt to avoid the declaration and restraining orders. A further injunction was therefore required to restrain JLCS, Lionel Miller and Joel Distiller from permitting any person to use the Squires Loft mark in relation to, or in connection with, the City Grill Room, and they were to pay the cross-claimants' costs.

Jurisdiction
Australia
Judgment Date
12 January 2009
Procedural Posture
Application for Further Injunction Concerning Use of the Trade Mark "squires Loft" and Alleged Avoidance of Prior Injunctions / After Earlier Judgment on the Licence and Prior Injunctions; Damages Assessment Remained on Foot
Outcome
Further injunction granted and costs ordered against the cross-respondents other than City Grill Room Pty Ltd.
Legal Topics
['use of Trade Mark by Licensee and Related Entities' 'non Derogation From Grant of Licence' 'implied Exclusivity Term' 'further Injunction to Prevent Indirect Avoidance of Existing Restraints' 'procedure Where Breach of Injunction or Contempt Is Alleged']
['contempt of Court' 'trade Marks' 'injunctions' 'contract and Licensing'] ['use of Trade Mark by Licensee and Related Entities' 'non Derogation From Grant of Licence' 'implied Exclusivity Term' 'further Injunction to Prevent Indirect Avoidance of Existing Restraints' 'procedure Where Breach of Injunction or Contempt Is Alleged']

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Procedural Posture

Application for Further Injunction Concerning Use of the Trade Mark "squires Loft" and Alleged Avoidance of Prior Injunctions / After Earlier Judgment on the Licence and Prior Injunctions; Damages Assessment Remained on Foot

Legal Issues

  1. 1 ['Whether websites and related conduct used the trade mark "Squires Loft" in connection with the City Grill Room despite existing injunctions.' 'Whether the existing injunctions covered use of the mark by persons other than City Grill Room on its behalf.' 'Whether a further injunction should be granted to restrain JLCS, Lionel Miller and Joel Distiller from permitting any person to use the mark in relation to or in connection with City Grill Room.' 'Whether, procedurally, alleged breach of existing orders should be pursued by contempt or by a further injunction.']

Ratio Decidendi

The websites were designed so that the City Grill Room took the benefit of the Squires Loft mark, and the claimed explanation that they merely showed a factual association was rejected. Although the conduct fell outside the existing injunctions because City Grill Room itself was not presently using the mark, the use by others on its behalf was a transparent attempt to avoid the declaration and restraining orders. A further injunction was therefore required to restrain JLCS, Lionel Miller and Joel Distiller from permitting any person to use the Squires Loft mark in relation to, or in connection with, the City Grill Room, and they were to pay the cross-claimants' costs.

Court Disposition

Further injunction granted and costs ordered against the cross-respondents other than City Grill Room Pty Ltd.

Orders

  • ['Each cross-respondent (other than City Grill Room Pty Ltd) is restrained from using or permitting the use (including the use on any internet site) of the trade mark "Squires Loft" to promote the business known as the City Grill Room restaurant or The Grill Room City Steak House which is located at 535 Little...