Jemella Australia Pty Ltd v Bouobeid (No 2) [2010] FCA 365

Jemella Australia Pty Ltd v Bouobeid (No 2) [2010] FCA 365

The first respondent was in default because he failed to appear at directions hearings, failed to defend the proceedings, and had notice of the proceedings and hearing. The applicant was entitled to substantive relief because the GHD trade mark registration was in evidence, the applicant was an authorised user...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
14 April 2010
Procedural Posture
Trade Mark Infringement Proceedings / Notice of Motion for Judgment in Default
Outcome
Judgment in default entered against the first respondent in favour of the applicant.
Legal Topics
['trade Mark Infringement' 'counterfeit Goods' 'default Judgment' 'injunction' 'delivery Up' 'forfeiture of Seized Goods' 'nominal Damages' 'costs']
['intellectual Property' 'civil Procedure'] ['trade Mark Infringement' 'counterfeit Goods' 'default Judgment' 'injunction' 'delivery Up' 'forfeiture of Seized Goods' 'nominal Damages' 'costs']

Source-derived case record

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Procedural Posture

Trade Mark Infringement Proceedings / Notice of Motion for Judgment in Default

Legal Issues

  1. 1 ['Whether judgment in default should be entered against the first respondent under O 35A of the Federal Court Rules.' 'Whether the applicant was entitled to relief for infringement of registered trade mark No 951664 by counterfeit GHD hairstyling products.' 'Whether nominal damages and fixed costs should be ordered.']

Ratio Decidendi

The first respondent was in default because he failed to appear at directions hearings, failed to defend the proceedings, and had notice of the proceedings and hearing. The applicant was entitled to substantive relief because the GHD trade mark registration was in evidence, the applicant was an authorised user authorised to bring the proceedings, the seized products were counterfeit and bore the GHD mark without authorisation of the registered owner, importation alone can infringe a trade mark, and no undertaking or evidence was provided by the first respondent. Nominal damages of $10 and fixed costs of $8,500 were appropriate.

Court Disposition

Judgment in default entered against the first respondent in favour of the applicant.

Orders

  • ['The first respondent is restrained pursuant to section 126 of the Trade Marks Act 1995 (Cth) from importing, promoting, distributing, advertising, offering for sale, displaying or otherwise using counterfeit hairstyling products bearing the marking "ghd hairstyling iron", "ghd styler", or "ghd" or otherwise...