Vivo International Pty Ltd v Tivo Inc [2012] FCA 1167

Vivo International Pty Ltd v Tivo Inc [2012] FCA 1167

The application was dismissed because there was no material change in circumstances and no demonstrated oversight concerning the absence of a cross-undertaking. The first appellant knew, when giving the undertaking as a condition of the stay intended to operate until determination of the appeal, that it might receive further orders it could not fulfil. The interests of justice did not require release from the undertaking, particularly where the proposed variation would allow expansion into Vivo branded audio-visual products other than televisions and the application was delayed.

Jurisdiction
Australia
Judgment Date
25 September 2012
Procedural Posture
Interlocutory Application in an Appeal / Appeal Heard by Full Court and Judgment Reserved; Appellants Sought Release From an Undertaking Given as a Condition of a Stay of the Primary Judge's Orders
Outcome
Interlocutory application dismissed with costs.
Legal Topics
['variation or Discharge of Interlocutory Undertaking' 'stay Pending Appeal' 'cross Undertaking as to Damages' 'trade Mark Cancellation and Infringement' 'deceptive Similarity']
['practice and Procedure' 'trade Marks'] ['variation or Discharge of Interlocutory Undertaking' 'stay Pending Appeal' 'cross Undertaking as to Damages' 'trade Mark Cancellation and Infringement' 'deceptive Similarity']

Case Brief

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Procedural Posture

Interlocutory Application in an Appeal / Appeal Heard by Full Court and Judgment Reserved; Appellants Sought Release From an Undertaking Given as a Condition of a Stay of the Primary Judge's Orders

Legal Issues

  1. 1 ['Whether the first appellant should be released from undertaking (a), which prevented it from placing further orders for or causing manufacture of products bearing the VIVO mark for sale in the Australian market.' 'Whether there had been a material change in circumstances or new matter justifying variation of the undertaking.' 'Whether the absence of a cross-undertaking as to damages justified release from the undertaking.' "Whether the appellants' asserted prospects of success on appeal should affect the interlocutory application."]

Ratio Decidendi

The application was dismissed because there was no material change in circumstances and no demonstrated oversight concerning the absence of a cross-undertaking. The first appellant knew, when giving the undertaking as a condition of the stay intended to operate until determination of the appeal, that it might receive further orders it could not fulfil. The interests of justice did not require release from the undertaking, particularly where the proposed variation would allow expansion into Vivo branded audio-visual products other than televisions and the application was delayed.

Court Disposition

Interlocutory application dismissed with costs.

Orders

  • ['The interlocutory application is dismissed.' "The appellants pay the respondents' costs of the interlocutory application."]