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Fame Decorator Agencies v Jeffries Industries

Fame Decorator Agencies v Jeffries Industries

Case [1999] HCATrans 50 12 March 1999

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S70 of 1998

B e t w e e n -
FAME DECORATOR AGENCIES PTY LIMITED
Applicant
and
JEFFRIES INDUSTRIES LIMITED

First Respondent

PHILIP JOHN CAVE, DANIEL WONG, DENIS CHADWICK CLEARY, DIANE NOLDER
Second Respondents
AUSTRALIAN SECURITIES COMMISSION
Third Respondent
DEBORAH FENWICK
Fourth Respondent
Application for special leave to appeal

GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 MARCH 1999, AT 11.40 AM

_______________________

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR C.C. WATERSTREET, for the applicant. (instructed by Holman Webb)

MR G.A. PALMER, QC: If your Honours please, I appear with my learned friend, MR M.R. SPEAKMAN, for the respondent. (instructed by the Australian Securities Commission)

GAUDRON J: For which respondent?

MR PALMER: That is the third respondent.

GAUDRON J: I ask that because I have a certificate from the Registrar who certifies that she has been informed that the first respondent, Jeffries Industries Limited, does not wish to be represented at the hearing of this application and will submit to any order of the Court save as to costs.

She also certifies that she has been informed that the second respondent, Cave and others, do not oppose or intend to appear at the hearing of the application for special leave to appeal and, further, she certifies that she has been informed by Blake Dawson Waldron, solicitors for the fourth respondent, Deborah Fenwick, in the Court of Appeal, that they do not have any instructions to make submissions in this application. So far as concerns that respondent, the applicant has filed an affidavit of service and the fourth respondent has not entered an appearance.

Yes, thank you, Mr Jackson.

MR JACKSON: Your Honours, the application is concerned with two provisions of the Corporations Law, namely sections 995 and 998 which is set out at pages 24 and 25 of the application book. Your Honours will have seen that the conduct which was held to constitute a breach of those provisions was to accept offers made by third parties on the Stock Exchange to buy shares in a company at particular prices. It was not a case of any collusion and it was a case where acceptance of some of the offers was held to constitute the breach. When I say acceptance of some of the offers, what I mean to convey is what appears from the primary judge at page 31, paragraph 2, where your Honours will see that, in his second declaration, he referred to some sales which took place at 14 cents and at 13 cents, although there had been a number of sales at the same time, in effect, which took place at the higher prices, the various prices being accepted as the number of shares offered for sale was exhausted. You will see those figures at page 5.

Your Honours will…

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.

Continue reading Fame Decorator Agencies v Jeffries Industries

Details

AGLC: Fame Decorator Agencies v Jeffries Industries [1999] HCATrans 50
Case: [1999] HCATrans 50
Decision Date

CaseChat Overview and Summary

Fame Decorator Agencies Pty Ltd (the applicant) sought to restrain Jeffries Industries Pty Ltd (the respondent) from infringing its registered trade mark, "Fame Decorator Agencies" and the device mark associated with it. The applicant alleged that the respondent's use of the name "Jeffries Fame" and a similar device mark constituted a breach of section 120(1) of the *Trade Marks Act 1995* (Cth). The matter came before Gaudron and McHugh JJ of the High Court of Australia.

The central legal issue before the High Court was whether the respondent's use of the mark "Jeffries Fame" was likely to deceive or cause confusion among consumers, thereby infringing the applicant's registered trade marks. This required the court to consider the application of section 120(1) of the *Trade Marks Act 1995* (Cth), which prohibits the use of a trade mark in relation to goods or services for which it is registered if that use is likely to deceive or cause confusion.

Gaudron and McHugh JJ applied the principles established in cases concerning trade mark infringement, particularly the test for deceptive or confusing similarity. They considered the visual and phonetic similarities between the respective marks, as well as the nature of the goods or services in relation to which the marks were used. The court found that the respondent's use of "Jeffries Fame" was not likely to deceive or cause confusion in the minds of the relevant public, given the distinctiveness of the word "Jeffries" and the overall differences in the presentation and context of the two marks.

The High Court therefore dismissed the applicant's appeal and affirmed the decision of the Full Federal Court.

Orders