A W Faber-Castell v FBA Imports
[1997] FCA 1573
•16 DECEMBER 1997
IN THE FEDERAL COURT OF AUSTRALIA
NOT FOR GENERAL
DISTRIBUTIONVICTORIA DISTRICT REGISTRY
VG 696 of 1997
BETWEEN:
A W FABER-CASTELL
APPLICANTAND:
FBA IMPORTS
RESPONDENT
JUDGE:
HEEREY J
DATE:
16 DECEMBER 1997
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
I am satisfied this is an appropriate case for an interlocutory injunction. There is no dispute that these pens were a unique product on the market for some four years and on the face of the material at the moment there has been a fairly blatant copying of them. The suggested attack on the validity of the shape mark seems at the moment not much more than speculation and in any event there is strong evidence of passing off and breach of copyright. The respondents went into this activity with their eyes open. It is not an attractive argument for them to say that most of the damage has been done and there is only a relatively small number of products left.
By the same token the respondents cannot complain of great hardship in being injuncted pending trial. The offer to keep an account of profits is, in my opinion, not adequate to protect the applicant's interests in a case of this nature when we are dealing with products which, I infer, are relatively cheap items sold by retail. Also intangible factors such as loss of reputation would be difficult to prove.
There will be an injunction in terms of the draft order. I am prepared to make an order in those terms but I suggest the applicants may wish to add paragraphs which specify more clearly the actual conduct which is to be enjoined.
Costs will be reserved.
I certify that this and the preceding page are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey
Associate:
Dated: 16 December 1997
Counsel for the Applicant: G C McGowan Solicitor for the Applicant: Davies Collison Cave Counsel for the Respondent: J G Samargas Solicitor for the Respondent: Pearsons Date of Hearing: 16 December 1997 Date of Judgment: 16 December 1997
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