Aquila Pty Ltd v Auqua Swimwear Pty Ltd

Aquila Pty Ltd (the applicant) sought an interlocutory injunction against Auqua Swimwear Pty Ltd (the respondent) to restrain the respondent from infringing the applicant's trade mark "Aquila" and passing off its swimwear as that of the applicant. The dispute concerned the use of the name "Auqua" by the respondent in relation to swimwear. The application was heard in the Federal Court of Australia.

The primary legal issues before the court were whether the respondent's use of the name "Auqua" constituted an infringement of the applicant's registered trade mark "Aquila" under the *Trade Marks Act 1995* (Cth), and whether the respondent's conduct amounted to passing off at common law. Specifically, the court had to determine if there was a likelihood of deception or confusion among consumers given the similarity in the names and the nature of the goods.

In reaching its decision, the court applied the principles governing interlocutory injunctions, requiring the applicant to demonstrate a serious question to be tried and that the balance of convenience favoured granting the injunction. Regarding trade mark infringement, the court considered the degree of visual, aural, and conceptual similarity between the marks, as well as the similarity of the goods. For passing off, the court assessed whether the applicant had established goodwill in its mark, misrepresentation by the respondent, and resulting damage. The court found that there was a serious question to be tried on both grounds, and that the balance of convenience favoured the applicant, particularly given the potential for irreparable damage to the applicant's reputation and goodwill.

The court ordered that the respondent be restrained from using the name "Auqua" in relation to swimwear, pending the final determination of the proceedings.