Lutze, David Wayne & Ors v Barrett, Barry Brian John [1996] FCA 157

Lutze, David Wayne & Ors v Barrett, Barry Brian John [1996] FCA 157

There is a serious issue to be tried on both the design infringement and fair trading/passing-off claims, but the balance of convenience does not favour restraining the respondent from marketing and selling the alternative product. However, the balance of convenience does favour granting an interlocutory injunction restraining the respondent from utilising the applicants' product get-up (including names, caricature, and slogan), due to the risk of irreparable damage and misleading the public.

Parties
Applicant: David Wayne Lutze; Applicant: Kerry Ann Lutze; Applicant: Gregory Kim Lutze; Applicant: Graham Walter Dix; Applicant: Helen Susanne Dix; Respondent: Barry Brian John Barrett
Jurisdiction
Australia
Judgment Date
14 March 1996
Procedural Posture
Interlocutory Application for Injunction / Interlocutory (application for Interim Relief, Not Final Hearing)
Outcome
Interlocutory injunction granted in part; respondent restrained from using get-up, but not from selling the alternative product.
Legal Topics
Trade Mark Infringement, Design Infringement, Copyright, Misleading and Deceptive Conduct, Passing Off, Interlocutory Injunctions
Intellectual Property Fair Trading Trade Mark Infringement Design Infringement Copyright Misleading and Deceptive Conduct Passing Off Interlocutory Injunctions

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Parties

David Wayne Lutze

Applicant

Kerry Ann Lutze

Applicant

Gregory Kim Lutze

Applicant

Graham Walter Dix

Applicant

Helen Susanne Dix

Applicant

Barry Brian John Barrett

Respondent

Procedural Posture

Interlocutory Application for Injunction / Interlocutory (application for Interim Relief, Not Final Hearing)

Legal Issues

  1. 1 Whether there is a serious issue to be tried as to infringement of Australian Registered Design No 107727
  2. 2 Whether there is a serious issue to be tried as to misleading or deceptive conduct or passing-off under ss 10 and 12 of the Fair Trading Act 1987 (WA)
  3. 3 Whether the balance of convenience favours the grant of interlocutory injunctive relief

Ratio Decidendi

There is a serious issue to be tried on both the design infringement and fair trading/passing-off claims, but the balance of convenience does not favour restraining the respondent from marketing and selling the alternative product. However, the balance of convenience does favour granting an interlocutory injunction restraining the respondent from utilising the applicants' product get-up (including names, caricature, and slogan), due to the risk of irreparable damage and misleading the public.

Court Disposition

Interlocutory injunction granted in part; respondent restrained from using get-up, but not from selling the alternative product.

Orders

  • The respondent be restrained until further order from using, in relation to advertising, promoting, selling, offering or exposing for sale, or distributing any paper hanging device or attachments: (a) the words 'Hold-Ups', 'Hold-Up' or 'Hold-Up Distributors'; (b) the 'cowboy caricature'; (c) the graphic depictions...
  • The respondent take all reasonably practicable steps to cause the diversion until further order of the Perth telephone number 3281960 to the telephone number 1800-671-871.