Playgro Pty Ltd v Playgo Art & Craft Manufactory Limited [2016] FCA 280

Playgro Pty Ltd v Playgo Art & Craft Manufactory Limited [2016] FCA 280

The Playgo Device Mark is deceptively similar, though not substantially identical, to registered Playgro trade marks and was 'used' as a trade mark in Australia when the respondents sold goods bearing the mark overseas to retailers for sale in Australia; the respondents thereby infringed the marks under s 120(1) of the Trade Marks Act 1995 (Cth). No joint tortfeasorship was established.

Jurisdiction
Australia
Judgment Date
22 March 2016
Procedural Posture
Trade Mark Infringement Proceeding / Liability Judgment; Quantum/pecuniary Relief Yet to Be Determined
Outcome
Judgment for the applicant on liability for trade mark infringement against both respondents; joint tortfeasorship claim dismissed; quantum not determined.
Legal Topics
['trade Mark Infringement' 'substantial Identity' 'deceptive Similarity' 'use of Mark in Australia' 'joint Tortfeasorship']
['intellectual Property'] ['trade Mark Infringement' 'substantial Identity' 'deceptive Similarity' 'use of Mark in Australia' 'joint Tortfeasorship']

Case Brief

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Procedural Posture

Trade Mark Infringement Proceeding / Liability Judgment; Quantum/pecuniary Relief Yet to Be Determined

Legal Issues

  1. 1 ["Whether the Playgo Device Mark is substantially identical with, or deceptively similar to, Playgro's trade marks" 'Whether the respondents used as a trade mark the Playgo Device Mark in Australia' "Whether Playgo Enterprises had a common design with Myer to supply 'PLAYGO' branded toys for sale in Australia, such that it is a joint tortfeasor"]

Ratio Decidendi

The Playgo Device Mark is deceptively similar, though not substantially identical, to registered Playgro trade marks and was 'used' as a trade mark in Australia when the respondents sold goods bearing the mark overseas to retailers for sale in Australia; the respondents thereby infringed the marks under s 120(1) of the Trade Marks Act 1995 (Cth). No joint tortfeasorship was established.

Court Disposition

Judgment for the applicant on liability for trade mark infringement against both respondents; joint tortfeasorship claim dismissed; quantum not determined.

Orders

  • ['Within 7 days, the parties bring in minutes of orders to give effect to these reasons.']