Baycrown Pty Ltd v IVI Pty Ltd

Baycrown Pty Ltd (the applicant) sought to restrain IVI Pty Ltd (the respondent) from continuing an advertisement that allegedly infringed Baycrown's trade mark. The dispute concerned the use of the word "Baycrown" in advertising for a residential development. The matter came before the High Court of Australia on appeal from the Full Federal Court.

The High Court was required to determine whether the respondent's use of the word "Baycrown" in its advertising constituted an infringement of the applicant's registered trade mark. Specifically, the court considered whether the use was "in the course of trade" and whether it was "in relation to goods or services" for which the trade mark was registered, as required by the *Trade Marks Act 1995* (Cth). The court also had to consider the defence of honest commercial use.

Gleeson CJ and Gummow J, in separate but concurring judgments, found that the respondent's use of the word "Baycrown" in advertising for its residential development was not an infringement of the applicant's trade mark. Their Honours reasoned that the respondent was using the word "Baycrown" as part of the name of its development, and not as a trade mark to distinguish its goods or services from those of others. The use was descriptive of the development itself, rather than indicative of origin. Furthermore, the court found that the use was not "in the course of trade" in relation to goods or services for which the applicant's trade mark was registered, as the applicant's trade mark was registered for goods and services unrelated to residential property development. The defence of honest commercial use was also considered, though not ultimately determinative given the primary finding of non-infringement.

The appeal was dismissed.