Freeman, Jennifer & anor t/a The Pool Professionals v Abel Lemon & Co Pty Ltd

[1983] FCA 393

C A T C H W O R D S

- applicant alleges that the

INTERLOCUTORY INJUNCTION

respondent's conduct in using the words "Pool Professlonals"

contamed misrepresentations within the meaning of 5 - 5 2 of the

Trade Practices Act - words used by the respondent to emphasise

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pool professionalism, not CO trade under - no evidence of

actual confusion - evidence madequate to support a iindlng I

that there was a triable issue - respondent engaged in a

marketing	campaign	- balance of convenlence - injunction
refused.

Trade Practices Act 1974, S. 52

JENNIFER FREEMAN and BERNARD KINGSLEY carrying on business

under the registered business name	"THE POOL PROFESSIONALS"
v. ABEL LEMON & CO PTY LTD
QLD G121 OF 1983
FITZGERALD J.
9 BRISBANE
14 DECEMBER 1983

IN THE: FEDERAL COURT OF AUSTRALIA	)
) QLD G121 of 1983
9UEENSLAND DISTRICT REGISTRY
GEXJEXAL DIVISION	)

BEl'biEEN:

JENNIFER FREE" and BERNARD KINGSLEY carrying on business under the registered business name "THE POOL PROFESSIONALS" of

19 Water Street, Southport In the State of

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Queensland

Applicants

m:

ABEL LEMON €i CO PTT LTD

Respondent

FITZGERALD J. 16 DECEMBER 1983

REASONS FOR JUDGMENT

On Wednesday this week, 14 December 1983, I dismissed an

application for interlocutory injunctions restraining the

respondent "from using in the conduct of business in Queensland

the name of the Applicant's business 'The Pool Professionals'"

and from "engaging in any conduct which s likely to nislead the

public into believing that the Respondent's business conducted in

the State of Queensland is the business of the Applicant".

Directions were given and dates for trial in February 1984 have

'been fixed. The application for an interlocutory injunction was

refused at the end of the hearing and I then indicated that I

would provide reasons as soon as possible, which I now do.

B B 2 .

a

The applicants' business provldes services deposed to in

the following terms:

"Swimming pool services ;

Swimming pool maintenance; in swimming pools;

Painting and plumbing associated with

swimming pools.

The business trades under the name "The Pool Professionals" and

that name has been registered RS a business name under the

Business Names Act 1962 (Queensland) since January 1981. The

business is operated from a residence at 19 Water Street,

Southport on the Gold Coast and the trading name of the business

appears in the white pages o f the Gold Coast telephone directory.

There are numerous business competitors of the applicants on the

Gold Coast. There is no evidence concerning the size or

reputation of the applicants' business or its methods of

operation, including whether or not it advertises, or with

respect to the nature and extent and locatlon of its custom.

The r spondent trades throughout Australia. Its

business includes the manufacture of chemicals for use in

swimming pools and the wholesale of swimmlng pool chemicals, both

of those which it manufactures and others which it purchases, and

the wholesale of pool accessories. The respondent has carried on

such business f o r many years. It is not involved in retail

trading. There are numerous retail stores for pool chemicals and

accessories in the Gold Coast area. The respondent wholesales to

a number of such stores, none of which 1 s closer than 3 kms from

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the applicants' premises at 19 Water Street, Southport. Neither

the respondent nor any of the retall distributors of its products

trade under a name consisting of or including the words "Pool

Professionals", nor do those wards form part	of the brand name of
any of the respondent's products.

respond nt However, the emphasises "pool

professionalism" to promote its products and the services of the

retail distributors of its products.

In an industry magazine published in September 1983

distributed to retailers of goods and services such as those

provided by the applicant, the respondent appealed to thelr

professionalism in order to influence them to purchase from it,

referring to them throughout the extensive advertisement as "Pool

Professionals" or "pool professlanals" .

Further, the respondent is currently engaged in a

television advertising campaign which commenced, so far as is

presently material, on Brisbane television channel BTQ 7 on 9

October 1983 and is scheduled to continue on that channel until 5

February 1984. In the advertisement a customer is shown entering

premises where the respondent's products are on sale. A logo

consisting of a map of Australia with two capital P ' s

superimposed on it and underneath It the words "Pool

Professionals of Australia" is shovm affixed to the autside of

the premises. A voice describes the person consulted by the

customer as your "local pool professional". Later in the

advertisement, as the customer receives a leaflet from a

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salesman, a voice states "that your local pool pro puts you

ahead". The logo is again shown at the end of the advertisement

against a background of clear water In a swlmmlng pool with the

names of distributors of the respondent's products superimposed.

The same logo appears on the outside of premlses of

retailers of the respondent's products.

The respondent intends that it and the retail

distributors of its products will contmue to participate in a

marketing campaign in newspapers involving the use of the logo

after the completion of the television campalgn In February 1984.

The applicants became aware of the conduct of the

respondent in November 1983 and commenced the present proceedings

on 9 December 1983. By their Statement of Claim, the applicants

seek an in~unction and damages for alleged contravention of s.52

of the Trade Practices Act 1974 and/or passmg-off. In the

Statement of Claim, the applicants alleqe that the conduct f the

respondent is misleading, deceptive or likely to mislead or

deceive within the meaning of 5.52 in that -

(i) the respondent's tatements mean or

imply contrary to fact hat he

respondent's business ... is the

business carried on by the applicant;

(ii) the respondent's tatements mean or

imply contrary to fact hat he

respondent is the licensed agent of

the applicant;

5.

I ' ,

(iiil the respondent's statements mean or

imply contrary to facL Lhat the retail

distributors the of spondent's

products are employed by or are acting

on behalf of the applicants.

Precisely the same allegations and no others were made

the foundation of the applicants' request	fo r	an interlocutory
injunction.

No evidence was adduced of any Instance of actual

confusion. Further, although the applicants' Statement of Claim asserts that they have sustained loss, including a reduced volume of sales and diminution in value of goodwill, no evidence of loss

was adduced by the applicants. Nor was any suggestion made that

there would be any difficulties in quantifying any loss in fact

suffered by the applicants. On the other hand, there was

uncontroverted evidence of loss to the respondent if its

marketing campaign is interrupted, including costs associated

with the conduct of the campalgn. It is obvious that there might

be difficulty in quantifying other elements of damage whlch might

reasonably be anticipated to	flow from an injunction such	as was
sought.

The theoretical possibllity of some confusion may be

admitted and, indeed, such a possibility may be an inevitable

consequence of the applicants' use of a name which mentions

desirable attributes likely to be claimed by those in the trade.

It by no means Pollows that the making of such a claim or the use

of the words contained In the applicants' name by another

constitutes a misrepresentation by the maker.

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Certainly, in my opinion, the evldence was totally

inadequate to support a finding that there was even a triable

issue that the respondent's conduct contained any of the

misrepresentations alleged by the applicant. Nor, as matters

presently stand, is there sufficient basis for a finding that

there is a triable issue concerning whether the respondent's

conduct contains a representation that the appllcants, although

their business does not carry the logo, are connected with the

association of traders referred to in the advertising and logo as

the "Pool Professionals of Australia". In any event, the

respondent did not make such an assertion.

Although it does not much matter in view of the

conclusion at which I have otherwise arrived, I am also of the

clcar opinion that the balance of convenience favours the refusal

of rather than the grant of the in]unctions sought.