Bing! Software v Bing Technologies [2009] FCAFC 131

Bing! Software v Bing Technologies [2009] FCAFC 131

The appeal was allowed in part as the primary judge's injunction was too narrow and failed to provide sufficient protection for the appellant's trade mark rights. The injunction was varied to prohibit 'bing' upon, or in connection with, the first respondent's software and related dealings. Otherwise, the primary judge's findings, including on the lack of misleading or deceptive conduct and exercise of discretion on costs, disclosed no error and were affirmed.

Jurisdiction
Australia
Judgment Date
30 September 2009
Procedural Posture
Appeal / Judgment on Appeal From a Single Judge of the Federal Court of Australia
Outcome
Appeal allowed in part; otherwise dismissed.
Legal Topics
['trade Mark Infringement' 'misleading and Deceptive Conduct' 'injunctive Relief' 'passing Off' 'costs']
['intellectual Property Law' 'competition and Consumer Law'] ['trade Mark Infringement' 'misleading and Deceptive Conduct' 'injunctive Relief' 'passing Off' 'costs']

Case Brief

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Procedural Posture

Appeal / Judgment on Appeal From a Single Judge of the Federal Court of Australia

Legal Issues

  1. 1 ["Whether the respondents infringed the appellant's registered trade mark under Trade Marks Act 1995 (Cth) ss 7(4), 10, 20, 120(1)" 'Whether respondents engaged in misleading or deceptive conduct under s 52 of the Trade Practices Act 1974 (Cth)' 'Whether the form of injunction granted was adequate protection under the Trade Marks Act' 'Whether the exercise of discretion on costs was in error']

Ratio Decidendi

The appeal was allowed in part as the primary judge's injunction was too narrow and failed to provide sufficient protection for the appellant's trade mark rights. The injunction was varied to prohibit 'bing' upon, or in connection with, the first respondent's software and related dealings. Otherwise, the primary judge's findings, including on the lack of misleading or deceptive conduct and exercise of discretion on costs, disclosed no error and were affirmed.

Court Disposition

Appeal allowed in part; otherwise dismissed.

Orders

  • ['The appeal be allowed in part.' "Order 3 of the orders made by Justice Collier on 10 December 2008 be varied by adding a new paragraph d restricting use of the word 'bing' upon and in connection with the first respondent's software as specified." 'The appeal be otherwise dismissed.' "The appellant pay the...