Edutainments Pty Ltd v JMC Pty Ltd [2003] FCA 923

Procedural Posture

Application Alleging Trade Mark Infringement, Misleading or Deceptive Conduct and Passing Off / Final Judgment on Amended Application Seeking Permanent Restraint, Declaratory and Other Relief After Interlocutory Restraint

Legal Issues

1. 1 ['Whether the respondent used its computer-generated character as a trade mark in relation to educational services' "Whether the respondent's character was deceptively similar to the applicant's registered trade mark" 'Whether publication of the December 2002 advertisement was misleading or deceptive or made representations of association, affiliation or sponsorship' 'Whether the respondent sought to pass off its educational services as those of the applicant']

Ratio Decidendi

The respondent's character appeared in the December 2002 advertisement as an illustration of 3D animation skills that might be gained from the advertised course, not as a sign used to distinguish the respondent's educational services. In any event, the respondent's character produced a materially different impression from the applicant's CGC character and was not deceptively similar. The advertisement was not likely to cause readers, including students or potential students, to believe that the respondent's services were the applicant's services or that there was association or affiliation between the parties. For the same reasons, there was no passing off.

Court Disposition

Application dismissed with costs.

Orders

• ['The application be dismissed.' "The applicant pay the respondent's costs."]