Hy-Line Chicks Pty Ltd v Swifte [1966] HCA 19

Hy-Line Chicks Pty Ltd v Swifte [1966] HCA 19

The defendants were not protected by s. 64 (1) (c) because they failed to prove continuous relevant use of "Hi-Line" in relation to a trade in live chickens before registration of the plaintiff's mark; however, they were entitled under s. 64 (1) (a) to use "Hi-Line Hatchery and Poultry Farm" as the name of their place of business. Use of "Hy-Line" or "Hi-Line" as the name or description of a breed or strain of chickens infringed the plaintiff's registered trade mark.

Jurisdiction
Australia
Procedural Posture
Trade Mark Infringement Action / Judgment Granting Injunction and Declarations, With Further Consideration Reserved
Outcome
Plaintiff granted an injunction and declarations; defendants ordered to pay two-thirds of the plaintiff's costs to date; further consideration reserved.
Legal Topics
['trade Mark Infringement' 'prior Continuous Use Defence' 'good Faith Use of Business Name' 'injunctions and Declarations']
['intellectual Property' 'trade Marks'] ['trade Mark Infringement' 'prior Continuous Use Defence' 'good Faith Use of Business Name' 'injunctions and Declarations']

Case Brief

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Procedural Posture

Trade Mark Infringement Action / Judgment Granting Injunction and Declarations, With Further Consideration Reserved

Legal Issues

  1. 1 ['Whether the defendants infringed the plaintiff\'s registered trade mark "Hy-Line" by using "Hi-Line" or "Hy-Line" in relation to chickens.' "Whether the defendants were protected by s. 64 (1) (c) of the Trade Marks Act 1955-1958 Cth because they had continuously used the trade mark in relation to goods before registration of the plaintiff's mark." 'Whether the defendants were entitled under s. 64 (1) (a) of the Trade Marks Act 1955-1958 Cth to use "Hi-Line" as the name of their place of business.']

Ratio Decidendi

The defendants were not protected by s. 64 (1) (c) because they failed to prove continuous relevant use of "Hi-Line" in relation to a trade in live chickens before registration of the plaintiff's mark; however, they were entitled under s. 64 (1) (a) to use "Hi-Line Hatchery and Poultry Farm" as the name of their place of business. Use of "Hy-Line" or "Hi-Line" as the name or description of a breed or strain of chickens infringed the plaintiff's registered trade mark.

Court Disposition

Plaintiff granted an injunction and declarations; defendants ordered to pay two-thirds of the plaintiff's costs to date; further consideration reserved.

Orders

  • ["An injunction restraining the defendants from infringing the plaintiff's trade mark." 'A declaration that use, in the course of trade and without the plaintiff\'s permission, of "Hy-Line", "Hi-Line", or any other deceptively similar word or words as the name or description of a breed or strain of chickens...