Turbo Tek Enterprises Inc. & Anor v Target Australia Pty Ltd [1988] FCA 55

Turbo Tek Enterprises Inc. & Anor v Target Australia Pty Ltd [1988] FCA 55

There is a serious question to be tried as to whether the respondent's AQEE spray gun constitutes an obvious or fraudulent imitation of the applicants' registered design under s.30(1) of the Designs Act 1906, justifying the grant of an interlocutory injunction. The balance of convenience favours restraining the respondent, given the applicants' substantial investment and imminent promotional campaign, and the potential difficulty in assessing damages versus Target's minor inconvenience and ability to continue selling the applicants' product.

Parties
Applicant: Turbo Tek Enterprises Inc; Applicant: Autopace Pty Ltd; Respondent: Target Australia Pty Ltd
Jurisdiction
Australia
Judgment Date
17 February 1988
Procedural Posture
Interlocutory Application / Application for Interlocutory Injunction
Outcome
Interlocutory injunction granted.
Legal Topics
Registered Designs, Interlocutory Injunctions, Obvious or Fraudulent Imitation, Balance of Convenience
Intellectual Property Registered Designs Interlocutory Injunctions Obvious or Fraudulent Imitation Balance of Convenience

Case Brief

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Parties

Turbo Tek Enterprises Inc

Applicant

Autopace Pty Ltd

Applicant

Target Australia Pty Ltd

Respondent

Procedural Posture

Interlocutory Application / Application for Interlocutory Injunction

Legal Issues

  1. 1 Whether the respondent's product constitutes an 'obvious or fraudulent imitation' under s.30(1) of the Designs Act 1906.
  2. 2 Whether there is a serious question to be tried in relation to design infringement.
  3. 3 Whether the balance of convenience favours granting an interlocutory injunction.

Ratio Decidendi

There is a serious question to be tried as to whether the respondent's AQEE spray gun constitutes an obvious or fraudulent imitation of the applicants' registered design under s.30(1) of the Designs Act 1906, justifying the grant of an interlocutory injunction. The balance of convenience favours restraining the respondent, given the applicants' substantial investment and imminent promotional campaign, and the potential difficulty in assessing damages versus Target's minor inconvenience and ability to continue selling the applicants' product.

Court Disposition

Interlocutory injunction granted.

Orders

  • The respondent is restrained until the hearing and determination of the application herein or further order from manufacturing, importing, advertising, offering for sale, selling or supplying any spray washer device the same as or substantially identical with Exhibit 'JNB 6' herein.
  • The directions hearing is adjourned to Friday 19 February 1988 at 10.15 a.m.