Baroque Japan Ltd v Mad Keen Pty Ltd

Baroque Japan Ltd (the applicant) sought an interlocutory injunction against Mad Keen Pty Ltd (the respondent) to restrain alleged breaches of a licence agreement. The dispute concerned the respondent's alleged unauthorised use of the applicant's intellectual property, specifically designs and trade marks associated with the "Mishka" brand, in connection with the sale of clothing and accessories. The application was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the applicant had established a sufficient likelihood of success on the merits to justify the grant of an interlocutory injunction. This required the Court to consider whether the respondent had breached the licence agreement by exceeding the scope of the licence granted, particularly in relation to the territories and product categories for which it was authorised to use the applicant's intellectual property. The Court also had to assess whether damages would be an adequate remedy for the applicant if the alleged breaches were proven at trial.

In determining the application, the Court applied the principles governing the grant of interlocutory injunctions, which require the applicant to demonstrate a serious question to be tried and that the balance of convenience favours the grant of the injunction. The Court found that there was a serious question to be tried regarding the respondent's alleged breaches of the licence agreement, noting evidence suggesting the respondent had supplied goods outside the licensed territories and had used trade marks in a manner not contemplated by the agreement. The Court concluded that damages would not be an adequate remedy due to the potential for ongoing damage to the applicant's brand reputation and market position.

Consequently, the Court ordered that an interlocutory injunction be granted, restraining the respondent from supplying or offering to supply goods bearing the applicant's trade marks or designs outside of the licensed territories and from using the trade marks in a manner inconsistent with the licence agreement, pending the final determination of the proceedings.