Mark Foys Pty Ltd v TVSN Ltd [2000] FCA 692

Mark Foys Pty Ltd v TVSN Ltd [2000] FCA 692

The television programs and websites did not convey to ordinary or reasonable prospective purchasers that TVSN, its website, services, or goods had the licence, sponsorship or approval of the defunct former Mark Foys. The prototype website's historical material and depiction of the Piazza store conveyed nostalgia and history, not sponsorship or approval, and the launched website contained even less such material. Any possible wonderment about a connection was insufficient for ss 52 or 53(c) and (d). The Trade Marks Act claim concerning a pending, unaccepted application was premature.

Jurisdiction
Australia
Judgment Date
26 May 2000
Procedural Posture
Trade Practices and Trade Marks Proceeding Seeking Injunctive Relief and Damages / Final Hearing; Reasons for Judgment and Orders
Outcome
Application dismissed with costs.
Legal Topics
['alleged False Representations of Licence, Sponsorship or Approval' 'use of Former Department Store Name in Television Programs and Website' 'online Retail Branding' 'premature Relief Concerning Pending Trade Mark Application']
['trade Practices' 'trade Marks' 'misleading or Deceptive Conduct'] ['alleged False Representations of Licence, Sponsorship or Approval' 'use of Former Department Store Name in Television Programs and Website' 'online Retail Branding' 'premature Relief Concerning Pending Trade Mark Application']

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Procedural Posture

Trade Practices and Trade Marks Proceeding Seeking Injunctive Relief and Damages / Final Hearing; Reasons for Judgment and Orders

Legal Issues

  1. 1 ["Whether TVSN's use of the words Mark Foys in television programs and on websites represented that TVSN, its retail services, or goods had the licence, sponsorship or approval of the former Mark Foys." 'Whether the television programs, prototype website, or launched website were misleading or deceptive or likely to mislead or deceive prospective purchasers.' "Whether relief under the Trade Marks Act 1995 should be granted in relation to TVSN's pending trade mark application lodged on 16 December 1998."]

Ratio Decidendi

The television programs and websites did not convey to ordinary or reasonable prospective purchasers that TVSN, its website, services, or goods had the licence, sponsorship or approval of the defunct former Mark Foys. The prototype website's historical material and depiction of the Piazza store conveyed nostalgia and history, not sponsorship or approval, and the launched website contained even less such material. Any possible wonderment about a connection was insufficient for ss 52 or 53(c) and (d). The Trade Marks Act claim concerning a pending, unaccepted application was premature.

Court Disposition

Application dismissed with costs.

Orders

  • ['The application is dismissed.' "The applicant pay the respondent's costs."]