Australian Boutique Markets Pty Ltd v Rachael Zelensky and Jeffrey Zelensky

Australian Boutique Markets Pty Ltd (the applicant) sought to restrain Rachael Zelensky and Jeffrey Zelensky (the respondents) from using the trademark "Australian Boutique Markets" and related logos. The applicant alleged that the respondents' use of this name and logo constituted a breach of their registered trademark and amounted to misleading and deceptive conduct under the *Australian Consumer Law*. The matter came before Justice Robert Wilson in the Federal Court of Australia.

The central legal issues before the Court were whether the respondents' use of the name and logo infringed the applicant's registered trademark, and whether their conduct was misleading or deceptive contrary to the *Australian Consumer Law*. Specifically, the Court had to consider the scope of the applicant's trademark registration and whether the respondents' activities fell within that scope, as well as whether the respondents' actions were likely to deceive or confuse consumers into believing their business was associated with or endorsed by the applicant.

Justice Wilson found that the respondents' use of the name "Australian Boutique Markets" and their associated logo was indeed an infringement of the applicant's registered trademark. His Honour determined that the marks were substantially identical or deceptively similar, and that the goods and services offered by the respondents were of a kind for which the applicant's trademark was registered. Furthermore, the Court concluded that the respondents' conduct was misleading and deceptive under the *Australian Consumer Law*, as it was likely to cause confusion among consumers regarding the origin and affiliation of the businesses. Consequently, the Court made orders restraining the respondents from continuing to use the infringing trademark and ordered them to pay the applicant's costs.