Coathurst Pty Ltd v Dune Holdings Limited

Coathurst Pty Ltd (the Applicant) and Dune Holdings Limited (the Opponent) were involved in a dispute concerning the probity of evidence presented by the Applicant. The matter came before Iain Campbell Thompson.

The central legal issue was whether a particular piece of the Applicant's evidence, specifically a photograph of a "fin sock" bearing a trade mark, was of doubtful probity. If it was, the Applicant argued that all of its evidence should be viewed with heightened suspicion. The court was required to determine if the alleged obliteration of a darker area above the trade mark indicated a spurious attempt to establish use of the trade mark on footwear.

The court considered the Applicant's submission that the darker area in the photograph might be an obliteration over which the trade mark was affixed to falsely demonstrate use. However, the court found that other explanations were equally plausible, including the possibility that the dark area was an artefact of the photograph, or that the trade mark was applied to generic footwear by the Opponent itself, either by affixing a sticker or by supplying stickers to a manufacturer. The court concluded that the mere fact that the trade mark might have been applied by the Opponent did not necessarily imply nefarious intent. Therefore, the court determined that questions concerning the probity of the "fin sock evidence" did not warrant treating all of the Applicant's evidence with anything other than the normal degree of circumspection.