FEDERAL COURT OF AUSTRALIA
Fanatics, LLC v FanFirm Pty Limited (Final Orders) [2025] FCAFC 112
Appeal from: FanFirm Pty Limited v Fanatics, LLC [2024] FCA 764 File number(s): NSD 1030 of 2024 Judgment of: BURLEY, JACKSON AND DOWNES JJ Date of judgment: 26 August 2025 Catchwords: APPEAL AND NEW TRIAL – form of orders following appeal – where appellant was partially successful – where costs orders made previously Cases cited: Fanatics, LLC v FanFirm Pty Limited (Costs) [2025] FCAFC 111
Division: General Division Registry: New South Wales National Practice Area: Intellectual Property Sub-area: Trade Marks Number of paragraphs: 14 Date of last submissions: 6 August 2025 Counsel for the Appellant: Mr A Bannon SC, Mr L Merrick SC and Ms M Evetts Solicitor for the Appellant: King & Wood Mallesons Counsel for the Respondent: Mr C Dimitriadis SC and Ms S Ross Solicitor for the Respondent: Sparke Helmore Lawyers ORDERS
NSD 1030 of 2024 BETWEEN: FANATICS, LLC
Appellant
AND: FANFIRM PTY LIMITED
Respondent
AND BETWEEN: FANFIRM PTY LIMITED
Cross-Appellant
AND: FANATICS, LLC
Cross-Respondent
ORDER MADE BY:
BURLEY, JACKSON AND DOWNES JJ
DATE OF ORDER:
26 AUGUST 2025
THE COURT ORDERS THAT:
1.The appeal be allowed (in part).
2.The cross-appeal be allowed.
3.Paragraphs:
(a)6 of the orders of Rofe J dated 17 July 2024 (17 July Orders);
(b)1, 2, 3 and 5 of the orders of Bromwich J dated 23 August 2024,
be vacated.
4.The declaration at paragraph 1 of the 17 July Orders be varied by the deletion of towels and blankets from the definition of “Infringing Goods”.
5.The matter be remitted to the primary judge for case management on a date after:
(a)the deadline for filing any application for special leave to appeal to the High Court in accordance with rule 41.02.1 of the High Court Rules 2004 (Cth); and
(b)if an application for special leave to appeal to the High Court is filed, the resolution of that application and, if special leave is granted, the resolution of any appeal to the High Court.
6.Paragraphs 3 to 5 of the 17 July Orders regarding the rectification of the parties’ trade marks be stayed until:
(a)the expiry of the deadline for filing any application for special leave to appeal to the High Court in accordance with rule 41.02.1 of the High Court Rules; and
(b)if an application for special leave to appeal to the High Court is filed, the resolution of that application and, if special leave is granted, the resolution of any appeal to the High Court.
7.Any assessment and payment of the costs ordered by order 2 of the orders of Yates J dated 2 November 2023, order 1 of the orders of Yates J dated 28 February 2024, order 8 of the 17 July Orders, order 1 of the orders of Bromwich J dated 21 March 2025 and order 1 of the orders of the Full Court dated 11 August 2025:
(a)the expiry of the deadline for filing any application for special leave to appeal to the High Court in accordance with rule 41.02.1 of the High Court Rules; and
(b)if an application for special leave to appeal to the High Court is filed, the resolution of that application and, if special leave is granted, the resolution of any appeal to the High Court.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
On 9 July 2025, we published our reasons for judgment in Fanatics, LLC v FanFirm Pty Limited [2025] FCAFC 87 (Fanatics FC). On 11 August 2025, we made certain orders relating to costs for the reasons explained in Fanatics, LLC v FanFirm Pty Limited (Costs) [2025] FCAFC 111 (Fanatics Costs).
This judgment relates to the issue of the final orders to be made apart from the costs of the appeal, which were addressed in Fanatics Costs. Definitions adopted in Fanatics FC will be adopted in these reasons.
The relevant background is set out in Fanatics FC at [1]–[26]. The outcome of the appeal is set out at [27] of Fanatics FC and our observations about the extent of each party’s success on the appeal is contained in Fanatics Costs, especially at [10]–[13].
In this judgment, we will address the disputed orders, and will otherwise make the orders which were not the subject of any dispute.
Form of order relating to outcome of appeal
FanFirm seeks an order which identifies the precise grounds of appeal on which the appeal was allowed and which failed. There is no utility in such an order. We will therefore make the order in the form proposed by Fanatics.
Form of declaration
Fanatics seeks a form of declaration which is more specific in terms of identifying the conduct which it submits has been found to infringe its trade marks, as well as a declaration of conduct found not to infringe. FanFirm proposes a variation to the form of order made by the primary judge which reflects the findings in Fanatics FC.
For the following reasons, we will make the form of order proposed by FanFirm.
First, the orders sought by Fanatics in the Amended Notice of Appeal included a declaration as set out in its Notice of Cross-Claim dated 25 January 2023. That Notice of Cross-Claim sought a declaration in general terms by reference to the conduct referred to in its Statement of Cross-Claim, and did not seek a declaration of conduct found not to infringe. The form of declaration sought by Fanatics falls outside the scope of the orders sought by it in the Amended Notice of Appeal.
Secondly, FanFirm’s proposed approach of amending the declaration made by the primary judge is sufficient to record the outcome of the infringement case. As is always the case with a declaration of infringement, this is to be understood in light of the Court’s reasons, which spell out in detail the nature of the conduct that was found to infringe.
Form of injunction
Fanatics seeks a form of injunction which cross-refers to the form of declaration sought by it, and which we have declined to grant.
The order sought by Fanatics in the Amended Notice of Appeal included an injunction as set out in its Notice of Cross-Claim dated 25 January 2023. That Notice of Cross-Claim sought a permanent injunction in general terms, and which is aligned with the form of injunction granted by the primary judge. The form of injunction now sought by Fanatics is inconsistent with the form of the orders sought by it in the Amended Notice of Appeal.
In any event, the form of injunction granted by the primary judge is in the usual form, and there is nothing in Fanatics FC which requires it to be varied.
For these reasons, we decline to replace the form of injunction granted by the primary judge with the injunction sought by Fanatics.
Balance of orders
The balance of the orders sought by the parties have been amended to reflect the orders made on 11 August 2025.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Burley, Jackson and Downes. Associate:
Dated: 26 August 2025
- AGLC
- Fanatics, LLC v FanFirm Pty Limited (Final Orders) [2025] FCAFC 112
- Case
- [2025] FCAFC 112
- Decision Date
CaseChat Overview and Summary
The reasoning behind the court's decision was multifaceted. Firstly, the court noted that the form of declaration sought by Fanatics was not within the scope of the orders it had sought in its Amended Notice of Appeal. Secondly, the court found that FanFirm's proposed variation of the primary judge's declaration was adequate to reflect the findings of the appeal. The court also highlighted that the form of injunction sought by Fanatics was inconsistent with the form of the orders sought in its Amended Notice of Appeal and did not require variation. The court further addressed the balance of orders, amending them to reflect the orders made on 11 August 2025. The Full Court concluded that the appeal should be allowed in part and the cross-appeal allowed, with specific paragraphs of the previous orders vacated.
In summary, the court allowed the appeal in part and the cross-appeal, vacating specific paragraphs of the orders made by the primary judge and the Full Court. The court varied the declaration regarding the definition of "Infringing Goods" by deleting towels and blankets. It also stayed certain orders regarding the rectification of the parties' trademarks until the resolution of any potential High Court appeal. The matter was remitted to the primary judge for case management after the deadline for any application for special leave to appeal to the High Court and the resolution of such an application if filed. The assessment and payment of costs were similarly stayed pending the outcome of any High Court appeal. These orders were made to ensure that all proceedings aligned with the appeal's findings and to allow for potential further appeals to the High Court.
Orders
Orders of the court
1. The appeal be allowed (in part).
2. The cross-appeal be allowed.
3. Paragraphs:
(a) 6 of the orders of Rofe J dated 17 July 2024 (17 July Orders);
(b) 1, 2, 3 and 5 of the orders of Bromwich J dated 23 August 2024,
be vacated.
4. The declaration at paragraph 1 of the 17 July Orders be varied by the deletion of towels and blankets from the definition of “Infringing Goods”.
5. The matter be remitted to the primary judge for case management on a date after:
(a) the deadline for filing any application for special leave to appeal to the High Court in accordance with rule 41.02.1 of the High Court Rules 2004 (Cth); and
(b) if an application for special leave to appeal to the High Court is filed, the resolution of that application and, if special leave is granted, the resolution of any appeal to the High Court.
6. Paragraphs 3 to 5 of the 17 July Orders regarding the rectification of the parties’ trade marks be stayed until:
(a) the expiry of the deadline for filing any application for special leave to appeal to the High Court in accordance with rule 41.02.1 of the High Court Rules; and
(b) if an application for special leave to appeal to the High Court is filed, the resolution of that application and, if special leave is granted, the resolution of any appeal to the High Court.
7. Any assessment and payment of the costs ordered by order 2 of the orders of Yates J dated 2 November 2023, order 1 of the orders of Yates J dated 28 February 2024, order 8 of the 17 July Orders, order 1 of the orders of Bromwich J dated 21 March 2025 and order 1 of the orders of the Full Court dated 11 August 2025:
(a) the expiry of the deadline for filing any application for special leave to appeal to the High Court in accordance with rule 41.02.1 of the High Court Rules; and
(b) if an application for special leave to appeal to the High Court is filed, the resolution of that application and, if special leave is granted, the resolution of any appeal to the High Court.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
FanFirm seeks an order which identifies the precise grounds of appeal on which the appeal was allowed and which failed. There is no utility in such an order. We will therefore make the order in the form proposed by Fanatics.Form of declaration Fanatics seeks a form of declaration which is more specific in terms of identifying the conduct which it submits has been found to infringe its trade marks, as well as a declaration of conduct found not to infringe. FanFirm proposes a variation to the form of order made by the primary judge which reflects the findings in Fanatics FC. For the following reasons, we will make the form of order proposed by FanFirm. First, the orders sought by Fanatics in the Amended Notice of Appeal included a declaration as set out in its Notice of Cross-Claim dated 25 January 2023. That Notice of Cross-Claim sought a declaration in general terms by reference to the conduct referred to in its Statement of Cross-Claim, and did not seek a declaration of conduct found not to infringe. The form of declaration sought by Fanatics falls outside the scope of the orders sought by it in the Amended Notice of Appeal. Secondly, FanFirm’s proposed approach of amending the declaration made by the primary judge is sufficient to record the outcome of the infringement case. As is always the case with a declaration of infringement, this is to be understood in light of the Court’s reasons, which spell out in detail the nature of the conduct that was found to infringe.Form of injunction Fanatics seeks a form of injunction which cross-refers to the form of declaration sought by it, and which we have declined to grant. The order sought by Fanatics in the Amended Notice of Appeal included an injunction as set out in its Notice of Cross-Claim dated 25 January 2023. That Notice of Cross-Claim sought a permanent injunction in general terms, and which is aligned with the form of injunction granted by the primary judge. The form of injunction now sought by Fanatics is inconsistent with the form of the orders sought by it in the Amended Notice of Appeal. In any event, the form of injunction granted by the primary judge is in the usual form, and there is nothing in Fanatics FC which requires it to be varied. For these reasons, we decline to replace the form of injunction granted by the primary judge with the injunction sought by Fanatics.Balance of orders The balance of the orders sought by the parties have been amended to reflect the orders made on 11 August 2025.