Emap Elan Ltd v Pacific Publications Pty Ltd

Emap Elan Ltd and its subsidiaries, Emap Consumer Magazines Limited and Emap Women's Group Limited, brought an action against Pacific Publications Pty Ltd for interlocutory relief in the form of an injunction to restrain the defendant from publishing a magazine under the name "more". The applicants, who were publishers of a magazine of the same name, argued that the defendant's intended publication would cause confusion and mislead the public into believing there was a connection between the two publications. The case involved issues of passing off, trade practices and the adequacy of damages as a remedy. The court considered the strength of the applicants' case on the merits, the balance of convenience and the adequacy of damages.

The applicants had to show that there was a serious issue to be tried, that the balance of convenience favoured granting interlocutory relief and that damages would not be an adequate remedy. The court found that the applicants had shown a reputation for their magazine in Australia sufficient to establish a passing off action. While the defendant argued that the publications targeted different markets and that the word "more" was a generic term, the court found that the publications had overlapping content and markets. The court also found that allowing the defendant to publish its magazine could damage the applicants' reputation and goodwill in Australia. The balance of convenience therefore favoured granting the injunction.

The court found that damages would not be an adequate remedy given the public interest in protecting against misleading and deceptive conduct under the Trade Practices Act. The injunction would protect the applicants' reputation and goodwill in Australia until the matter could be fully litigated. The court granted the injunction, requiring the defendant to provide security for damages and ordering it to pay the applicants' costs of the interlocutory proceedings. The matter was stood over for directions.