Fender Australia Pty Ltd v Bevk, C.D. (trading as Guitar Crazy) Fender Australia Pty Ltd v Sullivan, C. (trading as St George Music Centre)

Fender Australia Pty Ltd, the exclusive Australian distributor of Fender guitars, brought an action against two defendants who sold second-hand guitars bearing the "Fender" mark. The case was heard in the Federal Court of Australia and the central issue was whether the sale of second-hand goods bearing the "Fender" mark constituted an infringement of Fender Australia's trade mark rights. The dispute centred on the interpretation of section 62 of the Trade Marks Act 1955 and its applicability to second-hand goods.

The court had to determine the extent to which section 62 of the Trade Marks Act 1955 applied to sales of second-hand goods. This provision prohibits the use of a registered trade mark without the consent of the registered proprietor, but the defendants argued that it should not extend to second-hand goods. The court also considered whether the sale of second-hand goods bearing the "Fender" mark, despite being overseas-manufactured, infringed Fender Australia's exclusive rights as the Australian distributor. The defendants contended that the sale of second-hand goods did not amount to "use" as defined by the Act and thus was not an infringement.

The court found that the sale of second-hand goods bearing the "Fender" mark did infringe Fender Australia's trade mark rights. The court held that the term "use" in section 62 of the Trade Marks Act 1955 was broad enough to encompass the sale of second-hand goods. The court rejected the defendants' argument that the provision should not apply to second-hand sales and emphasised the importance of protecting the reputation and goodwill associated with the "Fender" mark. Consequently, the court ruled in favour of Fender Australia, finding that the sale of second-hand guitars bearing the "Fender" mark constituted an infringement of their trade mark rights.

The final orders of the court directed the applicant to bring in Short Minutes on a date to be fixed in accordance with the reasons of the court. The settlement and entry of orders are governed by Order 36 of the Federal Court Rules.