FEDERAL COURT OF AUSTRALIA
Flash and Partners Spa v Shvarts [2008] FCA 1988
Federal Court Rules O 8 r 2, O 15A r 3
FLASH AND PARTNERS SPA and EDWARDS IMPORTS PTY LTD (ACN 099 860 545) v GENNA SHVARTS and CRISTIAN GASPARINI
VID 1018 of 2008
HEEREY J
19 DECEMBER 2008
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 1018 of 2008
BETWEEN: FLASH AND PARTNERS SPA
First ApplicantEDWARDS IMPORTS PTY LTD (ACN 099 860 545)
Second Applicant
AND: GENNA SHVARTS
First RespondentCRISTIAN GASPARINI
Second Respondent
JUDGE:
HEEREY J
DATE OF ORDER:
19 DECEMBER 2008
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.Pursuant to O 15A of the Federal Court Rules, the first respondent and the second respondent within 28 days make discovery of all documents, which are or have been in their possession, custody or control relating to the description of person or persons from whom they have purchased articles of clothing bearing the first applicant’s trademark or trademarks.
2.The respondents pay the applicants’ costs of the motion.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VID 1018 of 2008
BETWEEN: FLASH AND PARTNERS SPA
First ApplicantEDWARDS IMPORTS PTY LTD (ACN 099 860 545)
Second Applicant
AND: GENNA SHVARTS
First RespondentCRISTIAN GASPARINI
Second Respondent
JUDGE:
HEEREY J
DATE:
19 DECEMBER 2008
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
I am satisfied there should be an order under O 15A r 3(2) of the Federal Court Rules for discovery concerning the ascertainment of the identity of a prospective respondent.
I note at the outset that there does not seem to be any dispute that the respondents have or are likely to have knowledge of facts or possession of documents tending to assist in such ascertainment: see O 15A r 3(2). That itself is of some relevance.
The proposed proceeding against the persons whose identity is sought would be within the jurisdiction of this Court. The allegations include trade mark infringement of Australian trade marks. The breach of the exclusive agreement would be caught up in the accrued jurisdiction of this Court. Service out of the jurisdiction could be ordered under at least Items 1, 11 and 12 of O 8 r 2, if not others.
I am satisfied that reasonable inquiries have been made. I do not think it would be consistent with modern philosophies of litigation to require the applicant to go through a charade of elaborate inquiries throughout the northern hemisphere of people who are likely to be uncooperative in any event, when the present respondents can quite obviously provide the necessary information.
I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate:
Dated: 8 January 2008
Counsel for the Applicants: J A Ribbands Solicitor for the Applicants: Terence Grundy Counsel for the Respondents: A D Nash Solicitor for the Respondents: Freehills
Date of Hearing: 19 December 2008 Date of Judgment: 19 December 2008
- AGLC
- Flash and Partners Spa v Shvarts [2008] FCA 1988
- Case
- [2008] FCA 1988
- Decision Date
CaseChat Overview and Summary
The court held that the respondents, as importers and sellers of the counterfeit goods, were indeed agents or intermediaries for their suppliers. This meant that they were potentially liable for the infringement of the Italian company's trademarks if they knew, or ought to have known, that the goods they were selling were counterfeit. The court reasoned that the respondents had a duty to take reasonable steps to prevent the sale of counterfeit goods, including inquiring about the legitimacy of their suppliers and the goods they were purchasing. The court further held that the respondents were required to disclose information about their suppliers to assist the Italian company in pursuing legal action against the actual infringers.
As a result, the court ordered the respondents to provide details about their suppliers within 28 days, as per the Federal Court Rules. Additionally, the respondents were directed to pay the costs incurred by the Italian company in filing the motion. This decision underscores the importance of due diligence for businesses involved in the importation and sale of goods, particularly in relation to intellectual property rights. The orders aim to ensure that entities engaged in such activities take appropriate measures to prevent the sale of counterfeit goods and provide the necessary information to assist in legal proceedings against the actual infringers.
Orders
Orders of the court
1. Pursuant to O 15A of the Federal Court Rules, the first respondent and the second respondent within 28 days make discovery of all documents, which are or have been in their possession, custody or control relating to the description of person or persons from whom they have purchased articles of clothing bearing the first applicant’s trademark or trademarks.
2. The respondents pay the applicants’ costs of the motion.
Note:
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
Established by: HEEREY J
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