Fendi Adele SRL v Table Eight Pty Ltd

[2001] FCA 1921

FEDERAL COURT OF AUSTRALIA

Fendi Adele SRL v Table Eight Pty Ltd [2001] FCA 1921

FENDI ADELE SRL v TABLE EIGHT PTY LTD

V 88 of 2001

SUNDBERG J
6 FEBRUARY 2001
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 88 OF 2001

BETWEEN:	FENDI ADELE SRL APPLICANT
AND:	TABLE EIGHT PTY LTD (ACN 001 905 648) RESPONDENT

JUDGE:	SUNDBERG J
DATE:	6 FEBRUARY 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. HIS HONOUR:   The respondent has conceded that there is a serious question to be tried as to infringement.  That is a sensible and appropriate concession because on the material filed the applicant has, in my view, a strong case on the infringement issue.  That is a factor appropriate to be taken into account in deciding whether to grant an injunction, that is to say, on the balance of convenience question.  See for example Bullock v The Furnishing Trades Society (No 1) (1985) 5 FLR 464 at 472, a decision which on this point has been followed on a number of occasions.

2. On the balance of convenience, the essential point made by the respondent is that since sales of the objects in question have stopped, an injunction would serve no purpose.  However, I think the balance of convenience does favour the grant of relief.  At least four considerations point to this.  The first is that as of yesterday, arguably infringing goods were still being sold in Toowong, Queensland by Timbuctoo, a Table Eight stockist according to the evidence.  Secondly, there is uncertainty as to the locations at which goods are being sold.  I refer to the conflicting material in relation to the David Jones outlets.  Thirdly, I have already referred to the fact that the applicant has a strong case on infringement and that this is a factor that can be taken into account in the balancing exercise.  Fourthly, there is nothing in the respondent's material that suggests that there is any difficulty in complying with an interlocutory injunction.

3. I do not regard the other matters relied on by the respondent in connection with the balance of convenience, namely the history leading up to the issue of the proceedings and the conduct of the applicant's solicitor, as reasons for not granting interlocutory relief.  So I propose to grant an interlocutory injunction basically in terms of paragraph 1 of the application.

4. That will be upon the usual undertaking as to damages and a further undertaking to provide security for the undertaking in the sum of $38,000 by means of a bank guarantee to be lodged with the court.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate:

Dated:             13 May 2003

Counsel for the Applicant:	E Strong
Solicitors for the Applicant:	Corrs Chambers Westgarth
Counsel for the Respondent:	C Champion
Solicitors for the Respondent:	Reid & Vesely
Date of Judgment:	6 February 2001