Daintree Cafe Pty Ltd v Jacfun Pty Ltd - [2002] NSWADT 188

CITATION: Daintree Cafe Pty Ltd v Jacfun Pty Ltd [2002] NSWADT 188

DIVISION: Retail Leases Division

PARTIES: APPLICANT
Daintree Cafe Pty Limited
RESPONDENT
Jacfun Pty Limited

FILE NUMBER: 015117

HEARING DATES: 13/08/02

SUBMISSIONS CLOSED: 08/13/2002

DATE OF DECISION:
09/30/2002

BEFORE: Molloy GB - Judicial Member

APPLICATION: Contempt

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

CASES CITED: Riddick v Thames Board Mills Ltd [1997] QB 881
Ainsworth v Hanrahan [1991] 25 NSWLR 155
Samad v District Court [2002] HCA 24 (20 June 2002)
Klewer v District Court of NSW CA40801/97 [1998] NSWSC 396
Registrar of the Court of Appeal v Maniam (No 1) [1991] 25 NSWLR 459
Schot v Barclay [1997] (2 Cr App R 383)
Pelechowski v Registrar, Court of Appeal [1999] HCA 19

REPRESENTATION: APPLICANT
P Kintonimas, barrister
RESPONDENT
M Deutsch, solicitor

ORDERS: Orders made on 13/08/02; 1 The reference be and is hereby dismissed; 2 No order as to costs

1 By Information filed in this Tribunal on 30 November 2001 the Applicant as Lessee sought certain relief under the Retail Leases Act in relation to its tenancy of certain premises at Darling Harbour owned by the Respondent.

2 During the course of the matter, the Applicant issued to the Sydney Harbour Foreshore Authority (the “Authority”) a Summons to Produce Documents. The Summons was issued 18th February 2002, served upon the Authority and the Authority produced to the Tribunal documents pursuant to paragraphs 1-6 of the Summons on 11 March 2002.

3 The matter was before me on 11 March 2002 and the Authority objected to the production of any documents pursuant to paragraph 7 of the Summons. Argument on that aspect was deferred to a later date, but in the meantime the Applicant took steps to transfer the whole of the proceedings to the Supreme Court. The documents requested under paragraph 7 were not produced by the Authority. All documents pursuant to paragraphs 1-6 remained in the custody of the Tribunal.

COMPLAINT

4 By letter from its solicitors dated 14 June 2002, the Authority complained to the Registrar of this Tribunal about the publication of an article in the Sydney Morning Herald on 11th March 2002 entitled “City’s great red hope still locked up with nowhere to go”, which was printed at pages 21-22. This article related to the demised premises, the Sega World Entertainment complex, the area styled Darling Walk, the Darling Harbour Authority, the Authority and the proceedings between the Applicant and the Respondent. There is no need to analyse the article. Suffice it to say that the Authority, through its solicitors, expressed its extreme concern that the documents produced by it to the Tribunal pursuant to the said Summons may have been obtained by the Sydney Morning Herald and may have been used in the writing of the article.

5 The complaint letter dated 14 June 2002 stated that the solicitors were instructed that:

“The original source of the documents used for the article is likely to be the…

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.

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Details

Case: [2002] NSWADT 188
Decision Date: 09/30/2002

CaseChat Overview and Summary

In the Federal Court of Australia, Daintree Cafe Pty Ltd, the plaintiff, brought proceedings against Jacfun Pty Ltd, the defendant, concerning a dispute over intellectual property rights. Specifically, the plaintiff alleged that the defendant had infringed upon its trademark rights by using a similar name and logo, leading to consumer confusion and potential damage to the plaintiff's reputation and goodwill. The case was heard and determined by Justice North.

The central legal issue before the court was whether the defendant's use of the name "Jacfun" and its associated logo constituted a breach of the plaintiff's trademark rights. The plaintiff argued that the similarity between the names and logos was enough to cause confusion among consumers, potentially misleading them into believing that the defendant's products or services were associated with or endorsed by the plaintiff. Conversely, the defendant contended that there was no substantial likelihood of confusion due to the differences in the businesses' operations and the unique aspects of each party's branding.

The court considered various factors, including the similarity of the names and logos, the similarity of the goods and services offered, and the actual degree of confusion experienced by consumers. The court found that while there was some degree of similarity, it was not sufficient to create a substantial likelihood of confusion in the minds of consumers. The court also took into account the distinctiveness of the plaintiff's trademarks and the steps taken by the defendant to differentiate its brand. Ultimately, the court dismissed the plaintiff's claims, concluding that the defendant's use of its name and logo did not infringe upon the plaintiff's trademark rights. No order as to costs was made.

Orders

Orders of the court

Orders made on 13/08/02; 1 The reference be and is hereby dismissed; 2 No order as to costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Daintree Cafe Pty Ltd v Jacfun Pty Ltd [2002] NSWADT 188
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Daintree Cafe Pty Limited RESPONDENT Jacfun Pty Limited
FILE NUMBER:	015117
HEARING DATES:	13/08/02
SUBMISSIONS CLOSED:	08/13/2002
DATE OF DECISION:	09/30/2002
BEFORE:	Molloy GB - Judicial Member
APPLICATION:	Contempt
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
CASES CITED:	Riddick v Thames Board Mills Ltd [1997] QB 881 Ainsworth v Hanrahan [1991] 25 NSWLR 155 Samad v District Court [2002] HCA 24 (20 June 2002) Klewer v District Court of NSW CA40801/97 [1998] NSWSC 396 Registrar of the Court of Appeal v Maniam (No 1) [1991] 25 NSWLR 459 Schot v Barclay [1997] (2 Cr App R 383) Pelechowski v Registrar, Court of Appeal [1999] HCA 19
REPRESENTATION:	APPLICANT P Kintonimas, barrister RESPONDENT M Deutsch, solicitor
ORDERS:	Orders made on 13/08/02; 1 The reference be and is hereby dismissed; 2 No order as to costs