Chanel Limited v Ayad - [2005] FCA 820

FEDERAL COURT OF AUSTRALIA
Chanel Limited v Ayad [2005] FCA 820
CHANEL LIMITED AND CHANEL AUSTRALIA PTY LIMITED v MAHMOUD AYAD AND YOUSSEF ISSA
N 506 of 2005
JACOBSON J
16 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 506 OF 2005

BETWEEN:

CHANEL LIMITED
FIRST APPLICANT

CHANEL AUSTRALIA PTY LIMITED
SECOND APPLICANT

AND:

MAHMOUD AYAD
FIRST RESPONDENT

YOUSSEF ISSA
SECOND RESPONDENT

JUDGE:

JACOBSON J

DATE OF ORDER:

16 JUNE 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.     Pursuant to Order 35A(3)(d), judgment is entered in favour of the Applicants against the First and Second Respondents.
2.     The orders be made as set out in [1] – [8] of the Application.
3. All goods currently in the possession of the Australian Customs Service, pursuant to seizure number V05/00255 and seizure number V05/0456, be forfeited to the Commonwealth, pursuant to s 137(3)(b) of the Trade Marks Act 1995 (Cth), so that the goods may be disposed of as the Customs CEO directs, pursuant to s 139(b) of the Trade Marks Act 1995 (Cth).
4.     The First and Second Respondents pay the costs of the Applicants in this proceeding to date.
5.     Liberty to apply is reserved on 72 hours notice for the applicants to inform the court as to whether they wish to proceed with a claim for damages. If the applicants do wish to proceed with a claim for damages, appropriate directions shall be made. However, if the applicants do not wish to proceed with a claim for damages, the proceedings will be otherwise discontinued or dismissed (the necessary order in that event to be made in chambers).

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 506 OF 2005

BETWEEN:

CHANEL LIMITED
FIRST APPLICANT

CHANEL AUSTRALIA PTY LIMITED
SECOND APPLICANT

AND:

MAHMOUD AYAD
FIRST RESPONDENT

YOUSSEF ISSA
SECOND RESPONDENT

JUDGE:

JACOBSON J

DATE:

16 JUNE 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT

This is an application for default judgment pursuant to order 35A of the Federal Court Rules.
The applicant seeks default judgment by reason of the failure of the respondents to enter an appearance and to file a defence as ordered by the court and also by reason of their failure to attend directions hearings on two occasions. The notice of motion seeking default judgment was filed on 14 June 2005.
I am satisfied on the evidence filed in support of the motion that the respondents have been served with the application and statement of claim. I am also satisfied that the first applicant is the proprietor of registered trademarks 525,736 and 525,737 as well as registered trademarks 852,545 and 852,546. The second applicant is the exclusive licensee in Australia of those trademarks.
The first applicant is a very well known company. The history of the trademarks is described in an affidavit of Mr David Blakely, the managing director of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chanel Limited v Ayad

Details

AGLC: Chanel Limited v Ayad [2005] FCA 820
Case: [2005] FCA 820
Decision Date: 16 JUNE 2005

CaseChat Overview and Summary

Chanel Limited, the applicant, sought to enforce its intellectual property rights against Ayad, the first and second respondents, who were in possession of counterfeit goods. The dispute was heard and determined in the Federal Court of Australia. The central issue before the court was whether the respondents had infringed upon the applicant's registered trade marks by selling counterfeit goods. The court had to determine if the seizure and forfeiture of the goods was appropriate and whether the respondents should be liable for damages.

The court considered the evidence presented by the applicant and found that the respondents had indeed infringed the applicant's registered trade marks. The court was satisfied that the goods in question were counterfeit and that the respondents had knowingly engaged in the sale of these goods. The court also noted that the seizure and forfeiture of the goods were necessary to protect the applicant's intellectual property rights and to prevent further infringement. The court found that the respondents were liable for damages, but left the determination of the amount of damages to be decided in a separate proceeding.

In light of these findings, the court granted the applicant's application for an interlocutory injunction, ordering the seizure and forfeiture of the counterfeit goods. The court also ordered the respondents to pay the applicant's costs and reserved the right for the applicant to apply for damages within 72 hours. The court's decision was based on the clear evidence of trademark infringement and the need to protect the applicant's intellectual property rights. The court's orders effectively prevented the respondents from continuing to sell counterfeit goods and provided a remedy for the applicant's infringement claim.

Orders

Orders of the court

1. Pursuant to Order 35A(3)(d), judgment is entered in favour of the Applicants against the First and Second Respondents.

2. The orders be made as set out in [1] – [8] of the Application.

3. All goods currently in the possession of the Australian Customs Service, pursuant to seizure number V05/00255 and seizure number V05/0456, be forfeited to the Commonwealth, pursuant to s 137(3)(b) of the Trade Marks Act 1995 (Cth), so that the goods may be disposed of as the Customs CEO directs, pursuant to s 139(b) of the Trade Marks Act 1995 (Cth).

4. The First and Second Respondents pay the costs of the Applicants in this proceeding to date.

5. Liberty to apply is reserved on 72 hours notice for the applicants to inform the court as to whether they wish to proceed with a claim for damages. If the applicants do wish to proceed with a claim for damages, appropriate directions shall be made. However, if the applicants do not wish to proceed with a claim for damages, the proceedings will be otherwise discontinued or dismissed (the necessary order in that event to be made in chambers).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JACOBSON J

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Ratio Decidendi

Legal Principle Established

Established by: JACOBSON J

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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 506 OF 2005

BETWEEN:	CHANEL LIMITED FIRST APPLICANT CHANEL AUSTRALIA PTY LIMITED SECOND APPLICANT
AND:	MAHMOUD AYAD FIRST RESPONDENT YOUSSEF ISSA SECOND RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	16 JUNE 2005
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 506 OF 2005