Myosa Pty Ltd v Resmed Limited [2017] FCA 1187

Myosa Pty Ltd v Resmed Limited [2017] FCA 1187

The respondent’s application to have the proceeding summarily dismissed and to strike out the statement of claim failed because the applicant’s statement of claim asserted material facts sufficient to constitute a cause of action for trade mark infringement and contravention of consumer law, and whether the conduct...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
05 October 2017
Procedural Posture
Interlocutory Application / Dismissal and Strike Out Application Determined
Outcome
Respondent's interlocutory application dismissed; costs awarded on indemnity basis
Legal Topics
['trade Marks' 'practice and Procedure' 'summary Dismissal' 'strike Out']
['intellectual Property'] ['trade Marks' 'practice and Procedure' 'summary Dismissal' 'strike Out']

Source-derived case record

Summary, issues, holding and outcome

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Procedural Posture

Interlocutory Application / Dismissal and Strike Out Application Determined

Legal Issues

  1. 1 ['Whether the applicant has no reasonable prospect of successfully prosecuting the proceeding under s 31A(2) of the Federal Court of Australia Act 1976' 'Whether the statement of claim should be struck out for failing to disclose a reasonable cause of action under r 26.01(1)(a) and r 16.21(1)(e) of the Federal Court Rules 2011' 'Whether the costs should be ordered on an indemnity basis under s 43 of the Federal Court of Australia Act 1976']

Ratio Decidendi

The respondent’s application to have the proceeding summarily dismissed and to strike out the statement of claim failed because the applicant’s statement of claim asserted material facts sufficient to constitute a cause of action for trade mark infringement and contravention of consumer law, and whether the conduct was made out is a matter for trial. The respondent failed to demonstrate there was no reasonable prospect of success and did not ventilate its criticisms of the claim inter-parties prior to making the application, justifying indemnity costs.

Court Disposition

Respondent's interlocutory application dismissed; costs awarded on indemnity basis

Orders

  • ['The interlocutory application of the respondent filed on 25 August 2017 is dismissed.' 'The respondent, Resmed Limited, pay the costs of the applicant, Myosa Pty Ltd, of and incidental to the application on an indemnity basis.' 'The reasons for judgment in support of these orders are made and published from...