Demart Pro Arte B.V v Bath & Bodyworks Pty Limited

Demart Pro Arte B.V. (the applicant) sought an interlocutory injunction against Bath & Bodyworks Pty Limited (the respondent) to restrain the respondent from infringing the applicant's trade mark. The applicant alleged that the respondent's use of the mark "Bath & Bodyworks" in relation to its retail business constituted a breach of section 120(1) of the *Trade Marks Act 1995* (Cth). The application was heard in the Federal Court of Australia before Justice Nancarrow.

The primary legal issue before the Court was whether the applicant had established a strong prima facie case of trade mark infringement. This required the Court to consider whether the respondent's mark was identical or deceptively similar to the applicant's registered trade mark, and whether the goods or services in relation to which the respondent used its mark were of the same description as those for which the applicant's mark was registered. The Court also had to assess whether the balance of convenience favoured the grant of an interlocutory injunction.

Justice Nancarrow found that there was a strong prima facie case of infringement. His Honour determined that the marks were deceptively similar, considering the visual and aural aspects of the marks and the overall commercial impression they created. Furthermore, the goods and services offered by the respondent were found to be of the same description as those covered by the applicant's registration. In assessing the balance of convenience, the Court considered the potential for damage to the applicant's reputation and goodwill if the injunction were not granted, and the potential prejudice to the respondent if an injunction were granted and the applicant ultimately failed in its claim.

The Court ordered that an interlocutory injunction be granted, restraining the respondent from using the mark "Bath & Bodyworks" in connection with its business. The applicant was required to provide an undertaking as to damages.