Brandsma & Crockett Pty Ltd & Anor v Heindal Pty Ltd

Brandsma & Crockett Pty Ltd and another party (the applicants) sought to restrain Heindal Pty Ltd (the respondent) from continuing to use the trade mark "Heindal" in relation to certain goods. The applicants were the registered proprietors of the trade mark "Heindal" for use in relation to clothing and footwear. The respondent had commenced using the same mark for use in relation to "all goods in class 25". The applicants alleged that the respondent's use of the mark constituted trade mark infringement and passing off. The matter came before the Federal Court of Australia.

The primary legal issues before the court were whether the respondent's use of the trade mark "Heindal" in relation to "all goods in class 25" infringed the applicants' registered trade mark, and whether such use amounted to passing off. Specifically, the court had to consider the scope of the applicants' registration and the extent of the respondent's activities within class 25, which encompasses clothing, footwear, and headgear.

The court found that the applicants' trade mark registration was valid and subsisting. It further determined that the respondent's use of the mark "Heindal" for clothing and footwear was an infringement of the applicants' registered trade mark, as the goods were identical or similar and the marks were identical. The court also found that the respondent's use of the mark was likely to deceive or cause confusion among consumers, thereby constituting passing off. The court applied the principles of trade mark law, including the test for infringement under the *Trade Marks Act 1995* (Cth), which requires proof of use of an identical or deceptively similar mark for identical or similar goods or services. The court also applied the common law principles of passing off, which require proof of goodwill, misrepresentation, and damage.

The court ordered that the respondent be restrained from using the trade mark "Heindal" in relation to clothing and footwear. The applicants were awarded their costs.