Gilltrap, T.J. & Anor v Autopromos Pty Ltd & Anor [1995] FCA 151

Gilltrap, T.J. & Anor v Autopromos Pty Ltd & Anor [1995] FCA 151

The applicants have established reputation and goodwill in the descriptive phrase 'Australian Concours D'Elegance', but due to the highly descriptive nature of the name, small changes—such as the use of 'National Concours D'Elegance' by the respondents—are sufficient to avoid liability for passing off or misleading conduct. As the respondents had ceased the allegedly offending conduct and taken adequate distinguishing steps, there was no reasonable risk of contravention of s. 52 of the Trade Practices Act 1974. The balance of convenience (including third party interests) favoured refusal of interlocutory relief, especially as such relief would effectively amount to final relief.

Parties
Applicant: Terence John Gilltrap; Applicant: Maree Rose Gilltrap; First Respondent: Autopromos Pty Ltd ACN 007 362 683; Second Respondent: Australian Concours D'Elegance (Vic) Pty Ltd ACN 005 868 093
Jurisdiction
Australia
Judgment Date
14 March 1995
Procedural Posture
Application for Interlocutory Injunction / Interlocutory Application (decision on Interlocutory Relief)
Outcome
Application for interlocutory relief refused; costs reserved.
Legal Topics
Interlocutory Injunctions, Passing Off, Misleading or Deceptive Conduct, Trade Names
Intellectual Property Trade Practices Equity Interlocutory Injunctions Passing Off Misleading or Deceptive Conduct Trade Names

Case Brief

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Parties

Terence John Gilltrap

Applicant

Maree Rose Gilltrap

Applicant

Autopromos Pty Ltd ACN 007 362 683

First Respondent

Australian Concours D'Elegance (Vic) Pty Ltd ACN 005 868 093

Second Respondent

Procedural Posture

Application for Interlocutory Injunction / Interlocutory Application (decision on Interlocutory Relief)

Legal Issues

  1. 1 Whether interlocutory injunction should be granted to restrain use of 'Australian Concours D'Elegance' or 'National Concours D'Elegance' by respondents
  2. 2 Whether respondents' use constitutes passing off or contravenes s. 52 of Trade Practices Act 1974
  3. 3 Whether descriptive names can be protected against use by others

Ratio Decidendi

The applicants have established reputation and goodwill in the descriptive phrase 'Australian Concours D'Elegance', but due to the highly descriptive nature of the name, small changes—such as the use of 'National Concours D'Elegance' by the respondents—are sufficient to avoid liability for passing off or misleading conduct. As the respondents had ceased the allegedly offending conduct and taken adequate distinguishing steps, there was no reasonable risk of contravention of s. 52 of the Trade Practices Act 1974. The balance of convenience (including third party interests) favoured refusal of interlocutory relief, especially as such relief would effectively amount to final relief.

Court Disposition

Application for interlocutory relief refused; costs reserved.

Orders

  • The application for interlocutory relief be refused.
  • The costs of the application for interlocutory relief be reserved.