Factory X v Harvey Norman Retailing Pty Ltd

Factory X (the applicant) sought an interlocutory injunction against Harvey Norman Retailing Pty Ltd (the respondent) to restrain the respondent from continuing to use the applicant's registered trade mark, "Factory X", in relation to the sale of furniture and homewares. The applicant alleged that the respondent's use of the trade mark constituted trade mark infringement and misleading and deceptive conduct under the Australian Consumer Law. The application was heard in the Federal Court of Australia.

The primary legal issues before the Court were whether the applicant had established a serious question to be tried regarding trade mark infringement and misleading and deceptive conduct, and whether the balance of convenience favoured the grant of an interlocutory injunction. Specifically, the Court had to consider whether the respondent's use of the mark was likely to cause confusion among consumers as to the origin of the goods, and whether the respondent's conduct was likely to deceive or cause confusion in the marketplace.

In determining whether to grant the interlocutory injunction, the Court applied the principles established in *Australian Broadcasting Corporation v O'Neill*. This required the Court to assess whether the applicant had demonstrated a sufficient likelihood of success on the merits of its claim, and then to weigh the potential harm to each party if the injunction were granted or refused. The Court considered evidence of the respondent's marketing and sales activities, as well as the potential for damage to the applicant's reputation and goodwill.

The Court ultimately found that the applicant had established a serious question to be tried and that the balance of convenience favoured the grant of an interlocutory injunction. Accordingly, the Court ordered that the respondent be restrained from using the trade mark "Factory X" in connection with the sale of furniture and homewares pending the final determination of the proceedings.