HIT Entertainment Limited v Lodin [2006] FCA 722

HIT Entertainment Limited v Lodin [2006] FCA 722

Because the uncontested affidavit evidence established that the applicants owned the relevant registered trade marks, that the respondent without authorisation attempted to import, offered for sale and sold counterfeit children's clothing bearing identical or substantially similar marks, and that the applicants had reputations in the relevant characters and merchandise, the respondent's conduct infringed the trade marks, constituted misleading and deceptive conduct and false representations, and amounted to passing off. The respondent's default and the evidence justified judgment and the declaratory, injunctive, delivery up, damages, destruction and costs orders sought under O 35A r3(2)(d).

Jurisdiction
Australia
Judgment Date
08 June 2006
Procedural Posture
Intellectual Property Proceeding Concerning Trade Mark Infringement, Misleading and Deceptive Conduct and Passing Off / Application for Default Judgment Under O 35 a R3(2)(d) of the Federal Court Rules
Outcome
Default judgment entered for the applicants against the respondent; declarations, injunctions, delivery up, damages to be agreed or determined, destruction of seized goods and costs ordered.
Legal Topics
['trade Mark Infringement' 'importation of Infringing Articles' 'offering for Sale and Sale of Infringing Articles' 'misleading and Deceptive Conduct' 'false Representations' 'default Judgment' 'injunctive Relief' 'delivery Up' 'damages' 'costs']
['intellectual Property' 'trade Marks' 'trade Practices' 'passing Off' 'practice and Procedure'] ['trade Mark Infringement' 'importation of Infringing Articles' 'offering for Sale and Sale of Infringing Articles' 'misleading and Deceptive Conduct' 'false Representations' 'default Judgment' 'injunctive Relief' 'delivery Up' 'damages' 'costs']

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
Sign in to unlock

Procedural Posture

Intellectual Property Proceeding Concerning Trade Mark Infringement, Misleading and Deceptive Conduct and Passing Off / Application for Default Judgment Under O 35 a R3(2)(d) of the Federal Court Rules

Legal Issues

  1. 1 ['Whether the respondent infringed the Bob the Builder Marks and the Thomas the Tank Engine Marks by attempting to import, offering for sale and selling goods bearing those marks without authorisation.' "Whether the respondent's conduct amounted to misleading and deceptive conduct or false representations under the Fair Trading Act 1999 (Vic)." 'Whether the respondent passed off his goods as goods of one or both applicants or as goods associated with them.' 'Whether default judgment and declaratory, injunctive, delivery up, damages, destruction and costs orders should be made.']

Ratio Decidendi

Because the uncontested affidavit evidence established that the applicants owned the relevant registered trade marks, that the respondent without authorisation attempted to import, offered for sale and sold counterfeit children's clothing bearing identical or substantially similar marks, and that the applicants had reputations in the relevant characters and merchandise, the respondent's conduct infringed the trade marks, constituted misleading and deceptive conduct and false representations, and amounted to passing off. The respondent's default and the evidence justified judgment and the declaratory, injunctive, delivery up, damages, destruction and costs orders sought under O 35A r3(2)(d).

Court Disposition

Default judgment entered for the applicants against the respondent; declarations, injunctions, delivery up, damages to be agreed or determined, destruction of seized goods and costs ordered.

Orders

  • ['The Respondent has infringed Australian registered trademarks 789198, 826787 and 826795 (together, the Bob the Builder Marks).' 'The Respondent has infringed Australian registered trademarks 618252 and 903053 (together, the Thomas the Tank Engine Marks).' 'The Respondent has, in contravention of section 9 of the...