Derrimut Health & Fitness Pty Ltd v Revival 24:7 Gym Pty Ltd (No 2) [2020] FCA 1581

Derrimut Health & Fitness Pty Ltd v Revival 24:7 Gym Pty Ltd (No 2) [2020] FCA 1581

The applicants were entitled to default judgment as the respondent failed to participate in the proceedings, did not file a defence or notice of address for service, and had no authority to use the applicants' copyright materials or trade marks. The orders sought were appropriate and supported by the evidence. Costs should be awarded on a lump sum, party-party basis, as indemnity costs were not warranted by the respondent's conduct.

Jurisdiction
Australia
Judgment Date
22 October 2020
Procedural Posture
Application for Default Judgment and Related Orders / Judgment in Default After Hearing (respondent in Default, No Appearance; Judgment and Costs Orders Made)
Outcome
Default judgment granted for the applicants; declaratory, injunctive and mandatory relief ordered against the respondent; costs ordered on a party and party (lump sum) basis.
Legal Topics
['copyright Infringement' 'trade Mark Infringement' 'misleading and Deceptive Conduct' 'costs (lump Sum Orders)' 'default Judgment']
['intellectual Property' 'practice and Procedure'] ['copyright Infringement' 'trade Mark Infringement' 'misleading and Deceptive Conduct' 'costs (lump Sum Orders)' 'default Judgment']

Case Brief

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Procedural Posture

Application for Default Judgment and Related Orders / Judgment in Default After Hearing (respondent in Default, No Appearance; Judgment and Costs Orders Made)

Legal Issues

  1. 1 ['Whether applicants are entitled to default judgment and final relief for copyright and trademark infringement and misleading conduct' 'Whether amendments to the originating application should be granted' 'Whether lump sum and/or indemnity costs should be ordered']

Ratio Decidendi

The applicants were entitled to default judgment as the respondent failed to participate in the proceedings, did not file a defence or notice of address for service, and had no authority to use the applicants' copyright materials or trade marks. The orders sought were appropriate and supported by the evidence. Costs should be awarded on a lump sum, party-party basis, as indemnity costs were not warranted by the respondent's conduct.

Court Disposition

Default judgment granted for the applicants; declaratory, injunctive and mandatory relief ordered against the respondent; costs ordered on a party and party (lump sum) basis.

Orders

  • ['Applicants granted leave to amend the Originating Application as sought' 'Respondent required to remove specified photographs from its marketing' 'Respondent restrained from using specified photographs and trademark in marketing' "Respondent required to remove the Second Applicant's registered trademark from its...