Energy Beverages LLC v Cantarella Bros Pty Ltd (No 2) [2022] FCA 394

Energy Beverages LLC v Cantarella Bros Pty Ltd (No 2) [2022] FCA 394

A stay of the Dismissal Orders is appropriate pending appeals to preserve the status quo and integrity of the Register, whereas a stay of costs orders is not justified absent special circumstances. EB's rejection of the 29 June 2021 Calderbank offer was unreasonable, warranting indemnity costs from 30 June 2021....

Source-derived case information.

Parties
Appellant: Energy Beverages LLC; Respondent: Cantarella Bros Pty Ltd
Jurisdiction
Australia
Judgment Date
14 April 2022
Procedural Posture
Appeals of Decisions of Delegates of the Registrar of Trade Marks / Post Judgment Applications for Stay, Indemnity Costs, and Suppression Orders After Dismissal of Appeals
Outcome
Stay of Dismissal Orders in two appeals granted; no stay of Costs Orders; variation of Costs Orders to provide indemnity costs from 30 June 2021; no order for costs on stay and indemnity costs applications; suppression orders made.
Legal Topics
Trade Marks, Stay of Orders, Suppression Orders, Costs – Indemnity Costs, Calderbank Offers
Intellectual Property Civil Procedure Trade Marks Stay of Orders Suppression Orders Costs – Indemnity Costs Calderbank Offers

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Parties

Energy Beverages LLC

Appellant

Cantarella Bros Pty Ltd

Respondent

Procedural Posture

Appeals of Decisions of Delegates of the Registrar of Trade Marks / Post Judgment Applications for Stay, Indemnity Costs, and Suppression Orders After Dismissal of Appeals

Legal Issues

  1. 1 Whether to grant a stay of dismissal orders pending appeal
  2. 2 Whether to grant a stay of costs orders
  3. 3 Whether to make indemnity costs orders based on rejected Calderbank offers

Ratio Decidendi

A stay of the Dismissal Orders is appropriate pending appeals to preserve the status quo and integrity of the Register, whereas a stay of costs orders is not justified absent special circumstances. EB's rejection of the 29 June 2021 Calderbank offer was unreasonable, warranting indemnity costs from 30 June 2021. Suppression orders are warranted to protect confidential settlement communications from disclosure and prevent prejudice to the proper administration of justice.

Court Disposition

Stay of Dismissal Orders in two appeals granted; no stay of Costs Orders; variation of Costs Orders to provide indemnity costs from 30 June 2021; no order for costs on stay and indemnity costs applications; suppression orders made.

Orders

  • Stay of Order 1 (Dismissal Order) in NSD 1858/2019 and NSD 63/2021 until determination of leave/any appeal.
  • Order 2 (Costs Order) in each proceeding varied: appellant to pay respondent's costs up to 30 June 2021, and indemnity costs from 30 June 2021.