Applied Business Technology Pty Ltd v Grandmaster Computers Pty Ltd

FEDERAL COURT OF AUSTRALIA

Applied Business Technology Pty Ltd v Grandmaster Computers Pty Ltd
 [1999] FCA 36

TRADE PRACTICES – misleading or deceptive conduct – whether acronym had become distinctive of applicant’s business in a particular country or geographical area – whether respondent’s use of same letters amounted to conduct likely to mislead or deceive – whether real chance that conduct likely to mislead or deceive customers or potential customers despite applicant’s and respondent’s operating in different segments of the computer market – test for determining whether number of persons sufficiently substantial to permit conclusion that conduct likely  to mislead or deceive.

Trade Practices Act 1974 s 52(1)

S & I Publishing Pty Limited v Australian Surf Live Saver Pty Limited [1998] FCA 1463, (Hill, RD Nicholson and Emmett JJ), applied

Equity Access Pty Limited v Westpac Banking Corporation (1990) ATPR ¶40-994, cited

Thai World Import v Shuey Shing (1989) 17 IPR 289, cited

ConAgra Inc v McCain Foods (Aust) (1992) 33 FCR 302, applied

Snoid v CBS Records (1981) 38 ALR 383, cited

Bridge Stockbrokers Ltd v Bridges (1984) 4 FCR 460, applied

Brock v Terrace Times Pty Ltd (1982) 40 ALR 97, cited

APPLIED BUSINESS TECHNOLOGY PTY LIMITED v GRANDMASTER COMPUTERS PTY LIMITED

NG 695 of 1998

KATZ J
SYDNEY
1 FEBRUARY 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 695 of 1998

JUDGE:	KATZ J
DATE OF ORDER:	1 February 1999
WHERE MADE:	SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

1The respondent by itself, its servants and agents be restrained from using in Sydney the letters “ABT” to identify its business.

2          The respondent pay the applicant’s costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 695 of 1998

BETWEEN:	APPLIED BUSINESS TECHNOLOGY PTY LIMITED ACN 059 909 327 Applicant
AND:	GRANDMASTER COMPUTERS PTY LIMITED ACN 003 715 660 Respondent
JUDGE:	KATZ J
DATE:	1 February 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The respective business activities of both Applied Business Technology Pty Limited (“Applied”) and Grandmaster Computers Pty Limited (“Grandmaster”) may be described in a general way as being the provision to consumers of computer hardware, computer software and computer services.

2. Applied has applied to this Court for the grant of a number of remedies against Grandmaster by reason both of the latter’s alleged breach of both subs 52(1) and s 53 of the Trade Practices Act 1974 (Cth) (“the Act”) and of the latter’s alleged commission of the tort of passing off.

3. As to Grandmaster’s alleged breach of s 53 of the Act, Applied did not expressly identify in the proceeding any particular paragraph or paragraphs of that section as being relied upon by it, but I infer from the form of par 9(b) of Applied’s statement of claim (which alleged that Grandmaster had represented in trade or commerce to the trade and…