Jemella Australia Pty Ltd v Boutcher [2009] FCA 376

Jemella Australia Pty Ltd v Boutcher [2009] FCA 376

The applicant, as an authorised user of the GHD registered trade mark, established on the balance of probabilities that the first respondent imported four counterfeit hairstyling irons not for personal use, thereby infringing the Trade Marks Act 1995 (Cth); the goods are liable to forfeiture to the Commonwealth and injunctive relief is warranted to restrain further infringement.

Parties
Applicant: Jemella Australia Pty Ltd; First Respondent: Liane Cherie Boutcher; Second Respondent: Jemella Limited
Jurisdiction
Australia
Judgment Date
17 April 2009
Procedural Posture
Intellectual Property Infringement / Trial Judgment
Outcome
Applicant succeeded in obtaining injunction and forfeiture orders. Costs fixed against first respondent.
Legal Topics
Trade Marks, Counterfeit Goods, Importation, Infringement, Practice and Procedure, Default Appearance
Intellectual Property Trade Marks Counterfeit Goods Importation Infringement Practice and Procedure Default Appearance

Case Brief

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Parties

Jemella Australia Pty Ltd

Applicant

Liane Cherie Boutcher

First Respondent

Jemella Limited

Second Respondent

Procedural Posture

Intellectual Property Infringement / Trial Judgment

Legal Issues

  1. 1 Whether applicant is entitled to bring proceedings for infringement of registered trade mark
  2. 2 Whether importation of goods by first respondent constitutes infringement of Trade Marks Act 1995 (Cth)

Ratio Decidendi

The applicant, as an authorised user of the GHD registered trade mark, established on the balance of probabilities that the first respondent imported four counterfeit hairstyling irons not for personal use, thereby infringing the Trade Marks Act 1995 (Cth); the goods are liable to forfeiture to the Commonwealth and injunctive relief is warranted to restrain further infringement.

Court Disposition

Applicant succeeded in obtaining injunction and forfeiture orders. Costs fixed against first respondent.

Orders

  • First respondent restrained 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 infringing Registered Trade Mark No. 951664.
  • Consignment of four 'GHD branded hair straighteners' seized on 18 August 2008 forfeited to the Commonwealth.