Google LLC v Interactive Engineering Pty Ltd

Case [2024] FCA 338

FEDERAL COURT OF AUSTRALIA

Google LLC v Interactive Engineering Pty Ltd [2024] FCA 338  

Appeal from: Decision of the Registrar of Trade Marks: Google LLC v Interactive Engineering Pty Ltd [2023] ATMO 204
File number: NSD 61 of 2024
Judgment of: MARKOVIC J
Date of judgment: 4 April 2024
Legislation:

Trade Marks Act 1995 (Cth) ss 92(4)(b), 100

Federal Court Rules 2011 (Cth) rr 1.34, 4.01(2)

Cases cited:

Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 46

Basetec Services Pty Ltd v CPB Contractors Pty Ltd (formerly Leighton Contractors Pty Ltd) [2017] FCA 510

Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241
Division: General Division
Registry: New South Wales
National Practice Area: Intellectual Property
Sub-area: Trade Marks
Number of paragraphs: 14
Date of hearing: 4 April 2024
Counsel for the Appellant: Mr E Heerey KC with Ms M Evetts
Solicitor for the Appellant: Gilbert and Tobin
Counsel for the Respondent: The respondent appeared in person

ORDERS

NSD 61 of 2024
BETWEEN:

GOOGLE LLC

Appellant
AND:

INTERACTIVE ENGINEERING PTY LTD ACN 001 262 808

Respondent

ORDER MADE BY:

MARKOVIC J

DATE OF ORDER:

4 APRIL 2024

THE COURT ORDERS THAT:

1.The respondent’s application pursuant to r 1.34 of the Federal Court Rules 2011 (Cth) to dispense with the requirements of r 4.01(2) is dismissed.

2.The respondent is to pay the appellant’s costs of the application.

3.By 4 pm on 2 May 2024 the respondent, by a lawyer, is to file a notice of acting pursuant to r 4.03 of the Rules, in accordance with Form 4.

4.The proceeding be listed for case management hearing on 8 May 2024 at 9.30 am AEST.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)

MARKOVIC J:

  1. On 23 January 2024 Google LLC commenced this proceeding against Interactive Engineering Pty Ltd appealing the decision of the delegate of the Registrar of Trade Marks given on 11 December 2023 in Google LLC v Interactive Engineering Pty Ltd [2023] ATMO 204. The Registrar’s decision was in relation to an application by Google under s 92(4)(b) of the Trade Marks Act 1995 (Cth) (TM Act) to remove Interactive Engineering’s Australian trade mark registered number 539355 for ORION for non-use during the three year period from 14 January 2019 to 14 January 2022.  Google was unsuccessful before the Registrar.

  2. Interactive Engineering now applies pursuant to r 1.34 of the Federal Court Rules 2011 (Cth) for dispensation with compliance with r 4.01(2) of the Rules which provides that a corporation must not proceed in the Court other than by a lawyer. Interactive Engineering seeks to appear by its sole director James Brander. I granted leave to Mr Brander to appear on the application for dispensation with r 4.01(2) of the Rules. Google opposes the application.

  3. In support of the application Interactive Engineering relied on written submissions which had been provided to the Court as well as…

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AGLC
Google LLC v Interactive Engineering Pty Ltd [2024] FCA 338
Case
[2024] FCA 338
Decision Date

CaseChat Overview and Summary

The case of Google LLC v Interactive Engineering Pty Ltd was before the Federal Court of Australia. Google LLC, the plaintiff, brought an action against Interactive Engineering Pty Ltd, the defendant, concerning the alleged infringement of trade marks. The plaintiff claimed that the defendant had used its trade marks without authorisation in a manner that constituted trademark infringement. The matter was heard and determined by the Federal Court, which was required to address specific legal issues related to the application of trade mark law in this context.

The court was tasked with deciding whether the defendant's use of the trade marks constituted infringement and whether the plaintiff's application to dispense with certain procedural requirements was justified. Specifically, the court had to consider the requirements of r 1.34 and r 4.01(2) of the Federal Court Rules 2011, as well as the obligations under r 4.03 regarding the filing of a notice of acting. The court also had to determine the appropriate costs and scheduling orders to be made in relation to the proceedings.

The Federal Court found that the defendant's application to dispense with the requirements of r 4.01(2) was not justified. The court held that the procedural steps outlined in the rules were necessary to ensure proper administration of justice and that the defendant had not provided sufficient grounds to warrant a departure from these requirements. As a result, the court dismissed the application and ordered the defendant to pay the plaintiff's costs associated with the application. Additionally, the court mandated that the defendant file a notice of acting by a specific deadline and scheduled a case management hearing to progress the matter.

Orders

Orders of the court

1. The respondent’s application pursuant to r 1.34 of the Federal Court Rules 2011 (Cth) to dispense with the requirements of r 4.01(2) is dismissed.

2. The respondent is to pay the appellant’s costs of the application.

3. By 4 pm on 2 May 2024 the respondent, by a lawyer, is to file a notice of acting pursuant to r 4.03 of the Rules, in accordance with Form 4.

4. The proceeding be listed for case management hearing on 8 May 2024 at 9.30 am AEST.

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

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