Halal Certification Authority Pty Limited v Quality Kebab Wholesalers Pty Limited (No 2) [2014] FCA 840

Halal Certification Authority Pty Limited v Quality Kebab Wholesalers Pty Limited (No 2) [2014] FCA 840

The orders of 13 June 2014 were interlocutory as not all issues including the form of corrective advertising had been resolved; the Court retained power under Federal Court Rules 2011 (Cth) r 39.05(c) to entertain the variation application, but there was no basis to vary the orders as s 126(2) of the Trade Marks Act 1995 (Cth) was procedural and applied to the proceedings; the corrective advertisement should reflect the actual finding of misleading and deceptive conduct, not trade mark infringement.

Parties
Applicant: Halal Certification Authority Pty Limited ACN 068 275 203; First Respondent: Quality Kebabs Wholesalers Pty Limited ACN 096 787 174; Second Respondent: Yasar Kose; Third Respondent: White Heaven Pty Limited ACN 151 079 999; Fourth Respondent: Kadirhan Illgun
Jurisdiction
Australia
Judgment Date
11 August 2014
Procedural Posture
Civil / Post Judgment Interlocutory Application Concerning Variation of Orders and Corrective Advertising
Outcome
Application to vary orders dismissed; corrective advertising ordered in specified newspapers; costs for variation application awarded to applicant
Legal Topics
Final Versus Interlocutory Orders, Corrective Advertising, Retrospective Operation of Statutes, Additional Damages Under Trade Marks Act, Misleading and Deceptive Conduct
Practice and Procedure Intellectual Property Law Trade Marks Consumer Law Final Versus Interlocutory Orders Corrective Advertising Retrospective Operation of Statutes Additional Damages Under Trade Marks Act +1 more

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Parties

Halal Certification Authority Pty Limited ACN 068 275 203

Applicant

Quality Kebabs Wholesalers Pty Limited ACN 096 787 174

First Respondent

Yasar Kose

Second Respondent

White Heaven Pty Limited ACN 151 079 999

Third Respondent

Kadirhan Illgun

Fourth Respondent

Procedural Posture

Civil / Post Judgment Interlocutory Application Concerning Variation of Orders and Corrective Advertising

Legal Issues

  1. 1 Whether orders of 13 June 2014 were interlocutory or final
  2. 2 Whether additional damages could be awarded under s 126(2) of the Trade Marks Act 1995 (Cth) retrospectively
  3. 3 Form and publication of corrective advertising

Ratio Decidendi

The orders of 13 June 2014 were interlocutory as not all issues including the form of corrective advertising had been resolved; the Court retained power under Federal Court Rules 2011 (Cth) r 39.05(c) to entertain the variation application, but there was no basis to vary the orders as s 126(2) of the Trade Marks Act 1995 (Cth) was procedural and applied to the proceedings; the corrective advertisement should reflect the actual finding of misleading and deceptive conduct, not trade mark infringement.

Court Disposition

Application to vary orders dismissed; corrective advertising ordered in specified newspapers; costs for variation application awarded to applicant

Orders

  • The application be dismissed.
  • The first respondent to publish the specified corrective advertisement in Zaman Avustralya and Al Wasat, on page 5, at least 10 cm wide and 5 cm high.