Swancom Pty Ltd v The Jazz Corner Hotel Pty Ltd [2020] FCA 396

Swancom Pty Ltd v The Jazz Corner Hotel Pty Ltd [2020] FCA 396

The Court determined the evidentiary objections by distinguishing evidence relied on for a hearsay purpose from evidence relevant for non-hearsay purposes, and by waiving the hearsay rule under s 190 where the asserted facts about businesses using the word "corner" and offering live music were confined, relatively uncontroversial, not determinative and requiring direct proof would involve unnecessary expense or delay. Evidence depending on implied assertions of authenticity or accuracy, such as customer reviews, newspaper articles recording statements, and oral statements by unidentified persons, was disallowed as hearsay unless otherwise admitted or limited.

Jurisdiction
Australia
Judgment Date
26 March 2020
Procedural Posture
Trade Mark Infringement Proceeding Under S 120 of the Trade Marks Act 1995 (cth) With Cross Claim for Rectification of the Register of Trade Marks / Evidentiary Rulings on Objections to Affidavit Evidence, Including Objections Determined on the Papers After Trial Was Adjourned for Written Closing Submissions
Outcome
Evidentiary objections were allowed in part, disallowed in part, and some evidence was admitted provisionally or with limitations.
Legal Topics
['admissibility' 'relevance' 'hearsay' 'waiver of Hearsay Rule' 'trade Mark Infringement' 'rectification of the Register of Trade Marks']
['evidence' 'intellectual Property' 'trade Marks'] ['admissibility' 'relevance' 'hearsay' 'waiver of Hearsay Rule' 'trade Mark Infringement' 'rectification of the Register of Trade Marks']

Case Brief

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Procedural Posture

Trade Mark Infringement Proceeding Under S 120 of the Trade Marks Act 1995 (cth) With Cross Claim for Rectification of the Register of Trade Marks / Evidentiary Rulings on Objections to Affidavit Evidence, Including Objections Determined on the Papers After Trial Was Adjourned for Written Closing Submissions

Legal Issues

  1. 1 ['Whether website screenshots, online searches, historical records, Tripadvisor reviews, newspaper articles, Yellow Pages searches, trade mark register searches and other affidavit material were admissible over objections based on relevance, hearsay, unfair prejudice, opinion or commentary.' 'Whether particular evidence was relied on to prove the truth of asserted facts or for a non-hearsay purpose such as showing use of the marks in issue or usage of the word "corner".' 'Whether the hearsay rule should be waived under s 190 of the Evidence Act 1995 (Cth) for evidence about hotels, pubs and other businesses using the word "corner" and offering live music.' 'Whether evidence should be limited under s 136 of the Evidence Act 1995 (Cth) or rejected as submission rather than evidence.']

Ratio Decidendi

The Court determined the evidentiary objections by distinguishing evidence relied on for a hearsay purpose from evidence relevant for non-hearsay purposes, and by waiving the hearsay rule under s 190 where the asserted facts about businesses using the word "corner" and offering live music were confined, relatively uncontroversial, not determinative and requiring direct proof would involve unnecessary expense or delay. Evidence depending on implied assertions of authenticity or accuracy, such as customer reviews, newspaper articles recording statements, and oral statements by unidentified persons, was disallowed as hearsay unless otherwise admitted or limited.

Court Disposition

Evidentiary objections were allowed in part, disallowed in part, and some evidence was admitted provisionally or with limitations.

Orders

  • ["Responses by The Jazz Corner Hotel in Tripadvisor material in Mr Hickey's affidavit were allowed; customer reviews in that material were not allowed." "Online articles concerning the opening of The Jazz Corner Hotel in Mr Hickey's affidavit were not allowed." "Mr Rogers' evidence was allowed, subject to limiting...