Lamont v Malishus Limited (No 2) [2022] FCA 237

Lamont v Malishus Limited (No 2) [2022] FCA 237

No error was found in the primary judge's determination that posts by Mr Nicholas constituted trade mark use but were directed to persons in New Zealand, not Australia, and thus did not amount to use in Australia for the purposes of s 120 of the Trade Marks Act. Further, there was no denial of procedural fairness: the primary judge's conduct satisfied the duty to ensure a fair trial under the circumstances, given Mr Lamont's demonstrated competence and use of court procedures.

Parties
Appellant: Darren Lamont; First Respondent: Malishus Limited; Second Respondent: Robert Jurcic; Third Respondent: Clinton Selwyn; Fourth Respondent: Rima Nicholas
Jurisdiction
Australia
Judgment Date
18 March 2022
Procedural Posture
Appeal / Final Judgment
Outcome
Appeal dismissed
Legal Topics
Trade Marks, Procedural Fairness, Self Represented Litigants, Jurisdictional Scope of Trade Mark Infringement, Damages and Account of Profits
Intellectual Property Practice and Procedure Trade Marks Procedural Fairness Self Represented Litigants Jurisdictional Scope of Trade Mark Infringement Damages and Account of Profits

Case Brief

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Parties

Darren Lamont

Appellant

Malishus Limited

First Respondent

Robert Jurcic

Second Respondent

Clinton Selwyn

Third Respondent

Rima Nicholas

Fourth Respondent

Procedural Posture

Appeal / Final Judgment

Legal Issues

  1. 1 Whether posts by the fourth respondent (Rima Nicholas) constituted trade mark use directed to Australia
  2. 2 Whether the applicant was denied a fair hearing through lack of assistance from the primary judge to a self-represented litigant

Ratio Decidendi

No error was found in the primary judge's determination that posts by Mr Nicholas constituted trade mark use but were directed to persons in New Zealand, not Australia, and thus did not amount to use in Australia for the purposes of s 120 of the Trade Marks Act. Further, there was no denial of procedural fairness: the primary judge's conduct satisfied the duty to ensure a fair trial under the circumstances, given Mr Lamont's demonstrated competence and use of court procedures.

Court Disposition

Appeal dismissed

Orders

  • The appeal be dismissed.
  • There be no order as to costs.