Bacchus Distillery Pty Ltd v BDS Marketing Australia Pty Ltd [2011] FCA 827

The respondents' use of the words "Cowboy" and "QF" alone did not show a serious issue because, for the interlocutory proceeding, those words were accepted as descriptors of types of drink rather than as identifiers associated solely or significantly with Bacchus. However, the respondents' "Cowboy" 700ml bottle, two litre cask and six-pack of shots, and "QF" six-pack of shots, were sufficiently similar in get-up to Bacchus products to raise a serious issue that consumers would be misled into believing the products were, or were associated with, Bacchus products and that Bacchus would be injured in its trade. The balance of convenience favoured injunctions directed to packaging because...

Jurisdiction: Australia
Judgment Date: 30 June 2011
Procedural Posture: Application for Interlocutory Orders Restraining Use of Words and Packaging in Relation to Alcoholic Beverages / Interlocutory Application
Outcome: Interlocutory injunction granted restraining the respondents from dealing in alcoholic beverages using the specified packaging or colourable imitations; trade mark-based relief directed only to alleged trade mark infringement was not granted; respondents ordered to pay 60% of the applicant's costs of the...
Legal Topics: ['alleged Trade Mark Infringement' 'misleading or Deceptive Conduct' 'false or Misleading Representations' 'get Up and Packaging of Alcoholic Beverages' 'balance of Convenience' 'costs of Interlocutory Application']

['trade Marks' 'australian Consumer Law' 'passing Off' 'interlocutory Injunctions'] ['alleged Trade Mark Infringement' 'misleading or Deceptive Conduct' 'false or Misleading Representations' 'get Up and Packaging of Alcoholic Beverages' 'balance of Convenience' 'costs of Interlocutory Application']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1

Procedural Posture

Application for Interlocutory Orders Restraining Use of Words and Packaging in Relation to Alcoholic Beverages / Interlocutory Application

Legal Issues

1 ['Whether there was a serious issue to be tried that the respondents\' use of the words "Cowboy" and "QF" infringed rights of the applicant or misled consumers.' "Whether there was a serious issue to be tried that the respondents' packaging was so similar in get-up to the applicant's packaging as to mislead consumers into believing the products were, or were associated with, the applicant's products." "Whether the balance of convenience favoured granting interlocutory injunctions directed to the respondents' packaging." 'Whether damages would be an adequate remedy for the applicant if interlocutory relief was refused.' 'What costs order should be made on the interlocutory application.']

Ratio Decidendi

Court Disposition

Interlocutory injunction granted restraining the respondents from dealing in alcoholic beverages using the specified packaging or colourable imitations; trade mark-based relief directed only to alleged trade mark infringement was not granted; respondents ordered to pay 60% of the applicant's costs of the...

Orders

['Until the hearing and determination of the proceeding or further order, each respondent be restrained from causing to be manufactured, importing, distributing, promoting for sale or supply, offering, displaying, advertising, selling and/or supplying any alcoholic beverages in or under and by reference to the...