Maggie Sottero Designs LLC v Loner [2018] FCA 1151

Maggie Sottero Designs LLC v Loner [2018] FCA 1151

The respondent was in default because he had been served in accordance with the service orders, notified of the defence deadline and application, and yet failed to file an address for service, file a defence, attend hearings, or take any step in the proceeding. The statement of claim properly and distinctly pleaded claims within the Court's jurisdiction for trade mark infringement, copyright infringement, contraventions of ss 18, 29(a), 29(g) and 29(h) of the ACL, and passing off, so the admitted allegations justified final injunctive relief under r 5.23. An inquiry into pecuniary relief was not appropriate without details of the nature or quantum of that claim, declarations were...

Jurisdiction
Australia
Judgment Date
03 August 2018
Procedural Posture
Application for Default Judgment in a Proceeding Alleging Trade Mark Infringement, Copyright Infringement, Contraventions of the Australian Consumer Law and Passing Off / Default Judgment Application After the Respondent Failed to File a Defence, File an Address for Service, or Attend Hearings
Outcome
Default judgment granted in part; final injunctions and domain name transfer orders made; pecuniary relief deferred; declaratory relief and indemnity costs declined; costs ordered on a party/party basis.
Legal Topics
['default Judgment' 'final Injunctions' 'indemnity Costs' 'service Out of the Jurisdiction' 'domain Name Transfer' 'false or Misleading Representations']
['practice and Procedure' 'intellectual Property' 'copyright' 'trade Marks' 'australian Consumer Law' 'passing Off'] ['default Judgment' 'final Injunctions' 'indemnity Costs' 'service Out of the Jurisdiction' 'domain Name Transfer' 'false or Misleading Representations']

Case Brief

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Procedural Posture

Application for Default Judgment in a Proceeding Alleging Trade Mark Infringement, Copyright Infringement, Contraventions of the Australian Consumer Law and Passing Off / Default Judgment Application After the Respondent Failed to File a Defence, File an Address for Service, or Attend Hearings

Legal Issues

  1. 1 ['Whether the respondent was in default within the meaning of r 5.22 of the Federal Court Rules 2011 (Cth).' 'Whether default judgment and final injunctive relief should be granted under r 5.23(2)(c) and (d) of the Federal Court Rules 2011 (Cth).' 'Whether an inquiry should be ordered to determine loss, damage and damages, including additional damages.' 'Whether declaratory relief should be granted.' "Whether the respondent should pay the applicant's costs on an indemnity basis."]

Ratio Decidendi

The respondent was in default because he had been served in accordance with the service orders, notified of the defence deadline and application, and yet failed to file an address for service, file a defence, attend hearings, or take any step in the proceeding. The statement of claim properly and distinctly pleaded claims within the Court's jurisdiction for trade mark infringement, copyright infringement, contraventions of ss 18, 29(a), 29(g) and 29(h) of the ACL, and passing off, so the admitted allegations justified final injunctive relief under r 5.23. An inquiry into pecuniary relief was not appropriate without details of the nature or quantum of that claim, declarations were...

Court Disposition

Default judgment granted in part; final injunctions and domain name transfer orders made; pecuniary relief deferred; declaratory relief and indemnity costs declined; costs ordered on a party/party basis.

Orders

  • ['The respondent, whether by himself, his servants and agents or otherwise, be permanently restrained from reproducing in a material form in Australia, communicating to the public in Australia, or authorising those acts, of the whole or a substantial part of each of the Maggie Sottero Photographs without the licence...