Lovatt, J. & Ors v Consolidated Magazines Pty Ltd [1988] FCA 478

Lovatt, J. & Ors v Consolidated Magazines Pty Ltd [1988] FCA 478

There was insufficient evidence to establish that the word 'Colossus,' when used by the respondent after the applicants' departure, constituted a misrepresentation or implied contractual breach; no substantial portion of the relevant public associated 'Colossus' exclusively with the applicants; thus claims under ss.52, 53, passing off, and implied term failed.

Parties
First Applicant: James Lovatt; Second Applicant: Christine Lovatt; Third Applicant: Wordsmiths Pty Limited; Respondent: Consolidated Magazines Pty Limited; Cross Claimant: Consolidated Magazines Pty Limited; First Cross Respondent: James Lovatt; Second Cross Respondent: Christine Lovatt; Third Cross Respondent: Wordsmiths Pty Limited; Fourth Cross Respondent: Puzzle Press Pty Limited; Fifth Cross Respondent: Century Publishing Pty Limited
Jurisdiction
Australia
Judgment Date
05 September 1988
Procedural Posture
Application and Cross Claim / Final Judgment
Outcome
Application and cross-claim both dismissed.
Legal Topics
Passing Off, Implied Contractual Terms, Misrepresentation, False Advertising, Use of Trade Names
Trade Practices Contract Passing Off Implied Contractual Terms Misrepresentation False Advertising Use of Trade Names

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 5 Authorities cited 11 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

James Lovatt

First Applicant

Christine Lovatt

Second Applicant

Wordsmiths Pty Limited

Third Applicant

Consolidated Magazines Pty Limited

Respondent

Consolidated Magazines Pty Limited

Cross Claimant

James Lovatt

First Cross Respondent

Christine Lovatt

Second Cross Respondent

Wordsmiths Pty Limited

Third Cross Respondent

Puzzle Press Pty Limited

Fourth Cross Respondent

Century Publishing Pty Limited

Fifth Cross Respondent

Procedural Posture

Application and Cross Claim / Final Judgment

Legal Issues

  1. 1 Whether use of the word 'Colossus' in connection with crossword puzzles constitutes an infraction of ss.52 or 53 of the Trade Practices Act or passing off
  2. 2 Whether an implied contractual term precluded the respondent from using the word 'Colossus' for crosswords not compiled by the applicants
  3. 3 Whether s.65A provides a defence to the claim

Ratio Decidendi

There was insufficient evidence to establish that the word 'Colossus,' when used by the respondent after the applicants' departure, constituted a misrepresentation or implied contractual breach; no substantial portion of the relevant public associated 'Colossus' exclusively with the applicants; thus claims under ss.52, 53, passing off, and implied term failed.

Court Disposition

Application and cross-claim both dismissed.

Orders

  • The Application be dismissed.
  • The Cross-claim be dismissed.