Anheuser-Busch, Inc v Budejovický Budvar, Národní Podnik [2002] FCA 624

Anheuser-Busch, Inc v Budejovický Budvar, Národní Podnik [2002] FCA 624

Although the applicant lost a central issue concerning the main 'Budějovický Budvar' mark, it was entitled to press the successful complaints about the 'Budweiser Budvar' strip, stationery and point of sale material, and much of the evidence overlapped. Fairly weighing the parties' mixed success and the difficulty of disentangling the evidence, the first respondent should pay 70% of the applicant's costs of the whole proceedings.

Jurisdiction
Australia
Judgment Date
15 May 2002
Procedural Posture
Federal Court Trade Marks, Trade Practices, Passing Off and Costs Proceeding / Judgment on Costs Following Publication of Substantive Reasons and Agreement on the Form of Orders
Outcome
The Court made agreed substantive orders and ordered that the first respondent pay 70% of the applicant's costs of the whole proceedings.
Legal Topics
['trade Mark Infringement' 'misleading or Deceptive Conduct' 'false Representations' 'passing Off' 'issue Based Costs' 'apportionment of Costs' 'cross Claim']
['intellectual Property' 'trade Marks' 'trade Practices' 'passing Off' 'costs'] ['trade Mark Infringement' 'misleading or Deceptive Conduct' 'false Representations' 'passing Off' 'issue Based Costs' 'apportionment of Costs' 'cross Claim']

Case Brief

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Procedural Posture

Federal Court Trade Marks, Trade Practices, Passing Off and Costs Proceeding / Judgment on Costs Following Publication of Substantive Reasons and Agreement on the Form of Orders

Legal Issues

  1. 1 ['Whether the applicant, having succeeded on some claims but failed on central issues, should receive all, none, or a proportion of its costs.' 'Whether the costs of the application and cross-claim should be considered together because of the overlap of issues.' 'How to account for issues won and lost by both parties without an overly mechanical issue-counting approach.']

Ratio Decidendi

Although the applicant lost a central issue concerning the main 'Budějovický Budvar' mark, it was entitled to press the successful complaints about the 'Budweiser Budvar' strip, stationery and point of sale material, and much of the evidence overlapped. Fairly weighing the parties' mixed success and the difficulty of disentangling the evidence, the first respondent should pay 70% of the applicant's costs of the whole proceedings.

Court Disposition

The Court made agreed substantive orders and ordered that the first respondent pay 70% of the applicant's costs of the whole proceedings.

Orders

  • ['Declares that the first respondent, by distributing, offering for sale and selling in Australia beer packaged in containers bearing a front label displaying on a band the words BUDWEISER BUDVAR, infringed Registered Trade Marks No 163032 BUDWEISER and No 366841 BUDWEISER KING OF BEERS, contravened ss 52, 53(c) and...