Apple and Pear Australia Limited v Pink Lady America, LLC

This matter came before the High Court of Australia concerning an application for special leave to appeal by Apple and Pear Australia Limited (APAL) against Pink Lady America, LLC. The dispute revolved around the potential transfer of trademarks, with APAL seeking to prevent such a transfer pending the determination of an appeal. APAL argued that the transfer of these trademarks would cause irreparable harm and that the court should maintain control over them.

The primary legal issues before the High Court were whether APAL had substantial prospects of success on its application for special leave to appeal, and if so, whether the court should exercise its jurisdiction to grant a stay pending the determination of an appeal. This involved considering the balance of convenience, including the potential prejudice to both parties, and the adequacy of any undertakings offered. The court was required to assess the risks associated with the transfer of trademarks, such as the loss of royalties, the inability to license exporters, and potential damage to existing agreements and goodwill.

The court considered arguments regarding the alleged prejudice to Pink Lady America, LLC, including the absence of immediate loss of royalties and the fact that Pink Lady America, LLC had been issuing export licences. APAL contended that Pink Lady America, LLC had also given an undertaking not to license the trademarks, thus negating the claimed prejudice. APAL further argued that the process of transferring and registering the trademarks in Chile would only take a few weeks, suggesting no immediate urgency. APAL also highlighted the lack of evidence regarding Pink Lady America, LLC's business substance and assets, questioning the reliability of any undertaking offered by an offshore corporation. APAL detailed several heads of irreparable harm, including the risk of the trademarks being on-sold or encumbered, the permanent prejudice from withdrawn trademark oppositions in Chile, and the potential termination of its Trade Mark Master Licence agreement with VR in Chile, leading to significant damages.

The High Court noted that the application for special leave to appeal was from a refusal to grant a stay, rather than a substantive determination. The court indicated it was familiar with the principles in *Jennings v Burgundy Royale* and focused on whether it should exercise its jurisdiction to preserve the status quo pending an application for a stay to the Court of Appeal. The court acknowledged the arguments concerning the balance of convenience and the potential for irreparable harm to APAL, particularly in light of the perceived lack of substance behind Pink Lady America, LLC's undertakings.