Handley, Mark v Snoid, Andrew

[1981] FCA 81

Re: MARK HANDLEY; RUSSELL HANDLEY; MARTIN BISHOP; GARRY MANLEY
And: ANDREW SNOID; PAUL SCOTT; KEVIN EMMETT; CHRISTOPHER MOORE; PAUL MASON;
C.B.S. RECORDS AUSTRALIA LIMITED
No. G34 of 1981
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
PRINCIPAL REGISTRY
Ellicott J.

CATCHWORDS

Trade Practices - alleged breaches of ss 52 and 53 - application for injunction - consumer protection - rock music groups - similar names - Popular Mechanics - Pop Mechanix - whether conduct misleading or deceptive or likely to mislead or deceive - whether representation that goods or services have sponsorship and approval they do not have - confusion - reputation - interpretation of Trade Practices Act and in particular s.52.

Consumer Protection - whether s.52 of Trade Practices Act limited by heading 'Consumer Protection'.

Injunctions - ss.80 and 82 - whether entitled to specific or general injunctions - whether entitled to perpetual injunctions - if relevant reputation not shown to extend beyond Sydney or Canberra whether public entitled to protection from deceptive or misleading conduct in these other places.

Trade Practices Act (1974) ss. 52, 53, 80 and 82

HEARING

SYDNEY

#DATE 7:7:1981

ORDER

A. ORDER that until further order of the Court:-

(1) the sixth-named respondent by itself its servants and agents be restrained from engaging in conduct in trade or commerce that is misleading or deceptive or is likely to mislead or deceive by using the name POP MECHANIX POP MEX or POP MX or any other colourable imitation of the name POPULAR MECHANICS or of the name POP MECHS in connection with the promotion or the performances of a band or in connection with the promotion sale supply or distribution of the music songs recordings or video tapes of or by a band in such a way as to mislead or deceive members of the public into believing that such band is the band known as POPULAR MECHANICS of which the second, third and fourth named applicants are or have been members

(2) the first to fifth-named respondents (inclusive) and each of them by himself his servants and agents be restrained from aiding or abetting the sixth-named respondent in any conduct forbidden by order 1 above and from being in any way directly or indirectly knowingly concerned in or a party to any such conduct.

(3) the sixth-named respondent by itself its servants and agents be restrained:-

(a) from selling supplying or distributing in Sydney or Canberra and from selling supplying or distributing for sale in Sydney or Canberra music songs recordings or video tapes purporting to be the music songs recordings or video tapes of or by a band referred to by the names POP MECHANIX POP MEX or POP MX or by any name which is a colourable imitation of the name POPULAR MECHANICS or of the name POP MECHS;

(b) from promoting for sale in Sydney or Canberra and from promoting in Sydney or Canberra the sale of music songs recordings or video tapes purporting to be the music songs recordings or video tapes of or by a band referred to by the names POP MECHANIX POP MEX or POP MX or by any name which is a colourable imitation of the name POPULAR MECHANICS or of the name POP MECHS;

(c) from promoting in Sydney or Canberra or from promoting the performances in Sydney or Canberra of any band referred to by the names POP MECHANIX or POP MEX or POP MX or by any other name which is a colourable imitation of the name POPULAR MECHANICS or of the name POP MECHS;

(d) from supplying to any radio or television station recordings video tapes film clips or promotional material intended for a broadcast or for use in connection with a broadcast to be transmitted to Sydney or Canberra and relating to any band referred to by the name POP MECHANIX or POP MEX or POP MX or by any other name which is a colourable imitation of the name POPULAR MECHANICS or of the name POP MECHS.

(4) the first to fifth-named respondents (inclusive) and each of them by himself his servants and agents be restrained:-

(a) from aiding and abetting the sixth-named respondent in any conduct forbidden by order 3(a)(b)(c) or (d) above or from being in any way directly or indirectly knowingly concerned in or a party to any such conduct;

(b) from taking part in any radio or television broadcast or in the preparation of any recording video tape film clip or promotional material for use in or in connection with a broadcast transmitted or intended to be transmitted to Sydney or Canberra if in such broadcast or in such recording tape clip or material it is represented that the said respondents are members of a band known as POP MECHANIX or POP MEX or POP MX or by any other name which is a colourable imitation of the name POPULAR MECHANICS or of the name POP MECHS;

(c) from recording musical works including video tapes where such records or video tapes are to be sold supplied or distributed for sale by the sixth-named respondent in Sydney or Canberra as the recordings of a band referred to as POP MECHANICS POP MEX or POP MX or by any other name which is a colourable imitation of the name POPULAR MECHANICS or POP MECHS;

(d) from preparing or assisting in the preparation of promotional material intended to be used by the sixth-named respondent to promote the sale supply or distribution in Sydney or Canberra of music songs recordings or video tapes purporting to be the music songs recordings or video tapes of or by a band referred to by the names POP MECHANICS POP MEX OR POP MX or by any other colourable imitation of the name POPULAR MECHANICS or of the name POP MECHS.

B. ORDER that any party be at liberty to apply on three days notice to discharge or vary any of the foregoing orders.

C. ORDER that the respondents pay the applicants' costs to date of this application.

D. ORDER that the further hearing and consideration of this application be stood over to a date to be fixed by the Registrar at the request of any party or at the direction of a Judge.

JUDGE1

In this matter I handed down reasons for judgment on 18 June last. In them I indicated that the applicants were entitled to appropriate injunctive relief but by agreement with counsel for the applicants and the respondents, left the determination of the exact form of relief until I had had the opportunity to hear submissions from counsel on the matter.

I have now had the benefit of those submissions and I propose to make the orders set out below.

Before doing so, there are two observations I would make.

First, I do not think that, in a case such as this, the applicants are entitled to unqualified perpetual injunctions against the respondents. In the uncertain world of popular music bands can become defunct or they may change their names. Already the applicants have ceased to engage in live performances for periods. If they ceased to exist or to use the name "POPULAR MECHANICS" any likely deception of the public may also cease and in those circumstances, at least, the respondents should be entitled to seek the discharge or variation of the orders I propose to make. There may be other supervening circumstances which would justify such an application. I therefore propose to make each of the orders "until further order of the court" and to grant liberty to any party to apply.

The second observation relates to the effect of the finding in my reasons for judgment that the reputation surrounding the name "POPULAR MECHANICS" had not been shown to extend beyond Sydney or Canberra. Counsel for the applicants submitted that this was not a reason for limiting the injunctive relief to Sydney or Canberra because the relevant public in other parts of Australia could still be misled or deceived if the two bands were performing there or if their respective records were being sold or played there. It is true that I have not found that the applicants' band has no reputation in those other places. What I have found is that the evidence does not satisfy me that the relevant reputation extends there. It is also true that the public in those places are entitled to protection from any deceptive or misleading conduct involved in the use of the name "POP MECHANIX".

The applicants have sought very specific Australia-wide injunctions against the respondents. On the other hand the respondents have suggested that the injunctions be in broad terms confined to Sydney and Canberra.

I have decided that there should be some relief that protects the public in other parts of Australia against possible deceptive or misleading conduct. I think this can best be done by granting injunctions in broad terms which will apply to the whole of Australia. Under these injunctions it will be a matter for the respondents to determine whether any proposed conduct involving use of the names "POP MECHANIX", "POP MEX" or "POP MX" or any other colourable imitation of "POPULAR MECHANICS" or "POP MECHS" would amount to misleading or deceptive conduct. I take the view that an Australia wide injunction is justified because the respondents' intentions as to the use of the offending name do not appear to be confined to any particular State or Territory.

I think there should also be more specific injunctions but these will be limited to the cities of Sydney and Canberra by which I mean not only the inner city but all those suburbs which are ordinarily regarded as part of each city.

This does not mean of course that the respondents or any of them can with impunity engage in conduct in relation to places outside Sydney or Canberra which if done in or in relation to those cities would be caught by those more specific injunctions. This will depend on whether such conduct breaches the more general injunctions which I propose to grant. Nor does the fact that I have not granted an injunction against particular conduct in Sydney or Canberra mean that it is not covered by a broader injunction. For example if the individual respondents engaged in live performances in Sydney or Canberra it may, depending on the circumstances, amount to a breach of the injunction 4(a) - aiding or abetting etc.

The orders I make are:-

A. ORDER that until further order of the Court:- (1) the sixth-named respondent by itself its servants and agents be restrained from engaging in conduct in trade or commerce that is misleading or deceptive or is likely to mislead or deceive by using the name POP MECHANIX POP MEX or POP MX or any other colourable imitation of the name POPULAR MECHANICS or of the name POP MECHS in connection with the promotion or the performances of a band or in connection with the promotion sale supply or distribution of the music songs recordings or video tapes of or by a band in such a way as to mislead or deceive members of the public into believing that such band is the band known as POPULAR MECHANICS of which the second, third and fourth named applicants are or have been members
(2) the first to fifth-named respondents (inclusive) and each of them by himself his servants and agents be restrained from aiding or abetting the sixth-named respondent in any conduct forbidden by order 1 above and from being in any way directly or indirectly knowingly concerned in or a party to any such conduct.

(3) the sixth-named respondent by itself its servants and agents be restrained:-

(a) from selling supplying or distributing in Sydney or Canberra and from selling supplying or distributing for sale in Sydney or Canberra music songs recordings or video tapes purporting to be the music songs recordings or video tapes of or by a band referred to by the names POP MECHANIX POP MEX or POP MX or by any name which is a colourable imitation of the name POPULAR MECHANICS or of the name POP MECHS;

(b) from promoting for sale in Sydney or Canberra and from promoting in Sydney or Canberra the sale of music songs recordings or video tapes purporting to be the music songs recordings or video tapes of or by a band referred to by the names POP MECHANIX POP MEX or POP MX or by any name which is a colourable imitation of the name POPULAR MECHANICS or of the name POP MECHS;

(c) from promoting in Sydney or Canberra or from promoting the performances in Sydney or Canberra of any band referred to by the names POP MECHANIX or POP MEX or POP MX or by any other name which is a colourable imitation of the name POPULAR MECHANICS or of the name POP MECHS;

(d) from supplying to any radio or television station recordings video tapes film clips or promotional material intended for a broadcast or for use in connection with a broadcast to be transmitted to Sydney or Canberra and relating to any band referred to by the name POP MECHANIX or POP MEX or POP MX or by any other name which is a colourable imitation of the name POPULAR MECHANICS or of the name POP MECHS.

(4) the first to fifth-named respondents (inclusive) and each of them by himself his servants and agents be restrained:-

(a) from aiding and abetting the sixth-named respondent in any conduct forbidden by order 3(a)(b)(c) or (d) above or from being in any way directly or indirectly knowingly concerned in or a party to any such conduct;

(b) from taking part in any radio or television broadcast or in the preparation of any recording video tape film clip or promotional material for use in or in connection with a broadcast transmitted or intended to be transmitted to Sydney or Canberra if in such broadcast or in such recording tape clip or material it is represented that the said respondents are members of a band known as POP MECHANIX or POP MEX or POP MX or by any other name which is a colourable imitation of the name POPULAR MECHANICS or of the name POP MECHS;

(c) from recording musical works including video tapes where such records or video tapes are to be sold supplied or distributed for sale by the sixth-named respondent in sydney or Canberra as the recordings of a band referred to as POP MECHANICS POP MEX or POP MX or by any other name which is a colourable imitation of the name POPULAR MECHANICS or POP MECHS;

(d) from preparing or assisting in the preparation of promotional material intended to be used by the sixth-named respondent to promote the sale supply or distribution in Sydney or Canberra of music songs recordings or video tapes purporting to be the music songs recordings or video tapes of or by a band referred to by the names POP MECHANICS POP MEX or POP MX or by any other colourable imitation of the name POPULAR MECHANICS or of the name POP MECHS.

B. ORDER that any party be at liberty to apply on three days notice to discharge or vary any of the foregoing orders.

C. ORDER that the respondents pay the applicants' costs to date of this application.

D. ORDER that the further hearing and consideration of this application be stood over to a date to be fixed by the Registrar at the request of any party or at the direction of a Judge.

Since 1975, in places like Australia and New Zealand, there has been a revolution in rock and roll style music. It has manifested itself in an upsurge of young bands playing for reward in venues large and small around the country. The days when the superstars were almost exclusively the providers of this music have passed. Many young people, in our do-it-yourself age, have decided that they can do it too. They have formed and named their own bands, played their own compositions and sung their own lyrics.

Out of this maelstrom of "new music" there emerged two particular bands who are locked in combat in these proceedings involving what has been appropriately described by a journalist as "an unfortunate clash of names". For one group, (the applicants), chose to be called "POPULAR MECHANICS" and the other, (five of the respondents), "POP MECHANIX". The former originated in Australia and the latter, at a later date, in New Zealand and, as far as I can tell from the evidence the names were arrived at independently of each other but, in one case, perhaps not surprisingly, with the journal "Popular Mechanics" in mind.

Recently the group POP MECHANIX came into prominence at a festival in New Zealand. As a result of their fame spreading across the Tasman they were soon signed up as recording artists for all countries outside New Zealand by the respondent CBS Records Australia Pty. Limited ("CBS") and, as many New Zealanders have done before them, decided to try their luck in Australia both in live performances and through the promotion and sale of their records. The applicants immediately objected, but, because the respondents ignored their objection, they commenced these proceedings claiming that the respondents have engaged in conduct that is misleading or deceptive or is likely to mislead or deceive contrary to s.52 of the Trade Practices Act 1974 (hereinafter called "the Act") and that they have in trade or commerce in connection with the supply of goods and services and the promotion of the supply of goods and services, contrary to s.53(d) of the Act, represented that they have a sponsorship approval or affiliation that they do not have.

The application has been strongly resisted and the hearing before me lasted some nine days.

The provisions of the Act of immediate relevance are ss.52(1) and 53(d) and parts of ss.6 and 80. For convenience I shall set them out.

"52(1) A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive." "53. A corporation shall not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services - . . . . . . . . . . . . . . . . . . .

(d) represent that the corporation has a sponsorship, approval or affiliation it does not have;" "6(1) Without prejudice to its effect apart from this section, this Act also has effect as provided by this section.

(2) This Act, other than Part X, has, by force of this sub-section, the effect it would have if -

(a) any references in this Act other than in sub-section 45D(1A) or in section 55 to trade or commerce were, by express provision, confined to trade or commerce -

(i) between Australia and places outside Australia;

(ii) among the States;

(iii) within a Territory, between a State and a Territory or between two Territories; or

(iv) by way of the supply of goods or services to the Commonwealth or an authority or instrumentality of the Commonwealth; . . . . . . . . . . . . . . . . . . . . . . . . . . . . . and

(h) subject to paragraphs (d), (e), (ea), (eb), (f) and (g), a reference in this Act to a corporation, except a reference in section 4, 48, 50 or 81 or sub-section 88(9), included a reference to a person not being a corporation.

(3) In addition to the effect that this Act, other than Part X, has as provided by sub-section (2), Division 1 of Part V has, by force of this sub-section the effect it would have if -

(a) that Division (other than section 55) were, by express provision, confined in its operation to engaging in conduct to the extent to which the conduct involves the use of postal, telegraphic or telephonic services or takes place in a radio or television broadcast; . . . . . . . . . . . . . . . . . . . . . .

(c) subject to paragraph (b), a reference in that Division to a corporation included a reference to a person not being a corporation." "80(1) The Court may, on the application of -

(a) the Minister;

(b) the Commission; or

(c) subject to sub-section (1A) - any other person, grant an injunction restraining a person from engaging in conduct that constitutes or would constitute -

(d) a contravention of a provision of Part IV or V; . . . . . . . . . . . . . . . . . . . .

(f) aiding, abetting, counselling or procuring a person to contravene such a provision; . . . . . . . . . . . . . . . . . . .

(h) being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of such a provision; or . . . . . . . . . . . . . . . . . . ."

As will appear from the facts, the band POP MECHANIX has played at many venues in several States and the A.C.T. As a result of arrangments made by CBS it has appeared live and a film clip of it has been shown on a nationally televised A.B.C. program "Countdown". CBS, which also produced the film clip, has distributed for sale to the public recordings of the band to a large number of retail outlets around Australia where those records have been sold. It is because it played in the A.C.T. and interstate and on national television that the applicants seek to rely on the extended operation of the Act under s.6 to obtain relief against the five members of POP MECHANIX. Of its own force s.52 could of course only apply to conduct on the part of CBS (being a corporation) but it is also claimed by the applicants that by virtue of s.80(1) the individual respondents have aided and abetted CBS to contravene s.52 and have directly or indirectly been knowingly concerned in or party to the contravention by CBS of s.52 and should be restrained from doing so.

It will be seen from this analysis of the statutory provisions that the essence of the dispute is the allegation that the individual respondents and CBS have engaged in conduct in trade or commerce or in radio or television broadcasts which is misleading or deceptive or likely to mislead or deceive. As indicated, the applicants rely on s.53(d) as well. It was not the main ground of their attack and I am satisfied, on the evidence, that a case under that provision has not been made out against any of the respondents either in its limited or extended form. I am satisfied the evidence does not establish that any of the respondents represented that he or it had a sponsorship approval or affiliation he or it does not have.

Before stating the facts, it may be helpful to set out, briefly, the principles which, in my view, are relevant in considering the application of s.52 of the Act to those facts.

The section is found in Part V Division 1 of the Act. Part V is headed "Consumer Protection" and Division 1 "Unfair Practices". It is the first of a number of sections prohibiting conduct regarded as unfair and is in much broader terms than those that follow. Unlike them its breach has not been made the subject of criminal proceedings. Because of its broad terms its full scope and operation will of necessity be worked out by the courts in individual cases and it is unwise to attempt to define, exhaustively, the types of cases which it will cover. Some idea of its scope and operation is to be gained from the fact that it is one of a number of sections whose obvious purpose is to outlaw unfair practices in the marketplace. The general heading of Part V is "Consumer Protection" but it should not be assumed from this that the protection of consumers is its only object. Section 52 is only one of a number of very broad provisions in the Act which are designed to preserve the freedom and fairness of competition in the marketplace. Part IV deals with restrictive trade practices including monopolisation, exclusive dealing, resale price maintenance and price discrimination. These provisions are obviously designed to protect and benefit traders and consumers alike - likewise s.52. It is designed to protect the marketplace for both traders and consumers alike to ensure as far as practicable that only the truth will be disseminated about the goods and services available. Traders who are affected by false statements have as much interest in preventing their dissemination as consumers. It is not surprising therefore that although any person can bring an action to enforce s.52, most actions to date have been brought by traders rather than consumers. The deception which s.52 is aimed at is not confined to misleading and deceptive statments by a trader in advertisements as to the qualities or characteristics of his products. The passing off by one trader of his goods as those of another is a classic instance of deception in the marketplace and it is not surprising that it has been held that in applying s.52 assistance is to be gained from cases relating to passing off. The principles of passing off, however, are mainly relevant for the purpose of determining what is misleading or deceptive or likely to mislead or deceive and the use to be made of them has already been discussed in cases before the High Court and this court.

The law of passing off recognises a trader's right to protect the goodwill which attaches to his business because a particular name, mark, get-up, slogan etc. has become distinctive in the market of his goods. This right is of course a restriction on the freedom of competition in the marketplace because it prevents other traders from using such a name etc. But it is a restriction which the law accepts. From the consumer's point of view it is beneficial because it avoids being misled or deceived into thinking that one trader's product is that of or connected with another. This, in essence, is why the law of passing off is so relevant to s.52. In truth, the use by one trader of a name which has become distinctive of the goods of another can be as misleading and deceptive in the marketplace as a false statement made by a trader about the goods of another. Basic to establishing such deception is proof that in the marketplace the particular name etc. by use, advertising or similar means distinguishes or means to consumers the goods or services of an identifiable trader. (See generally Hornsby Building Information Centre Pty. Limited v. Sydney Building Information Centre Pty. Limited 1978 52 A.L.J.R. 392; Erven Warnink BV v. J Townend & Sons (Hull) Ltd (1979) A.C. 731; Cadbury Schweppes v. Pub Squash Co. (1981) 1 All E.R. 213).

Obviously the extent and nature of the market will vary from case to case. In some cases it will be substantial and cover most members of the community. In others it will be relatively small. Because the object of s.52 is to give protection to those involved in the market from deceptive and misleading conduct its application should not depend on the size of the market or the nature of the consumers who make it up. They will be as varied as the demand for particular goods and services dictates.

In 1977, s.52 was amended to add the words "or is likely to mislead or deceive". This clarified two matters. First, proof of an intention to mislead or deceive is not necessary to the application of the section. Secondly, conduct will offend the provision if it has the capacity to or might well mislead or deceive even though it is not shown that it has in fact misled or deceived.

With these principles in mind I shall now proceed to consider the facts.

Late in 1978, a rock music band was formed in Sydney consisting of four people one of whom was the applicant, Russell Handley. About 1 March 1979 it adopted as its name POPULAR MECHANICS. By this time it consisted of five people, namely, the applicants, Russell Handley and Garry Manley and three others, Mark Foster, David Lemon and Ian Beckett. On 23 April 1979 it commenced to give live performances of rock music under that name at various venues in and around the centre of Sydney. On occasions it played at more distant venues such as Narrabeen, Rydalmere, Brighton-Le-Sands, Bexley, Ku-ring-gai but most of its performances were in the inner city area. They took place quite regularly until 15 April 1980. Between 23 April 1979 and that date the band performed on some 78 separate occasions at these venues using the name POPULAR MECHANICS. Several of the venues could hold up to 1,000 people. Most of them were smaller and could hold crowds ranging from 80 to 600 or 700. There was no precise evidence as to whether these venues were full on every occasion but I am satisfied that the band performed from time to time before audiences running into many hundreds. Sometimes they played as a support group to more popular bands like JIMMY AND THE BOYS and The HITMEN and on such occasions enjoyed the additional crowds which those bands drew.

In June 1979 the band warranted the services of a Manager and the applicant, Mark Handley, joined it in that capacity. About mid-November 1979 the band released an extended play recording entitled "From Here to Obscurity" under its name POPULAR MECHANICS. Approximately 750 copies of this record have been sold mainly in the Sydney area. Shortly after it was released, it received regular air play on station 2JJJ in Sydney and 2XX in Canberra. 2JJJ plays 24 hours a day, 7 days a week and has a listening audience of 30,000 people. Ian Meldrum, Co-ordinator of the ABC program "Countdown" described it as a very good radio station capable of breaking hits in Sydney in relation to the popular music played by it. On 2JJJ one of the tracks on the record ("Flamingo Road") received extensive air play, in terms of 2JJJ's practices, when the record was first released. It was one of 12 singles played on a rotation system and it was played three times a day for a period of approximately six weeks after its release. After that it was played for several months probably three or four times a week. Since then 2JJJ has continued to play it.

In June 1979 Garry Doyle replaced David Lemon as a member of the band. At the time of the first recording the band consisted of Russell Handley, Mark Foster (lead singer), Garry Manley, Ian Beckett and Garry Doyle.

In March 1980 the band attracted the attention of Alberts Music Publishers. They recorded demonstration tapes and there was discussion between the band and Albertsabout a recording contract but apparently nothing came of it.

After the first recording was made, further changes in the band's line-up occurred. Ian Beckett left the band in December 1979 and he was replaced by Jim Heywood. In April 1980 Garry Doyle and Mark Foster left and as a result on 15 April 1980 the band ceased live performances and did not perform live again until 1 November 1980.

Between these dates several things happened. In June 1980 Garry Dodd joined the band. On 1 July 1980 an agreement was entered into between Martin Bishop of Basilisk Records as the Producer and Garry Manley and Russell Handley as the Performer. The latter were described in the agreement as being "banded together under the group name 'POPULAR MECHANICS' and/or 'POP MEX' and/or 'POP MECHS'". Under it those described as "the Performer" agreed to make recordings exclusively for the Producer for an initial period of 3 years and terms were agreed upon for the payment of royalties and the deduction of recording costs. This was one of four arrangements entered into by Basilisk Records with bands for the making and release of recordings. These other bands were known as SEKRET SEKRET, THE SINGLES and JUMP VISION. Basilisk Records, it is claimed, is owned in partnership between the applicant Martin Bishop and his father. The Basilisk label is what is known in the music industry as an independent label. Russell Handley is identified with it in certain press releases put out by him and Martin Bishop but is apparently neither a partner nor an employee of it. He has however worked for it and is said to have founded it together with Martin Bishop. I do not regard it as necessary for the determination of these proceedings to decide what the precise nature of his relationship is or has been.

In June 1980 a recording was made by the band at Basilisk Studios entitled "You Get The Picture/Furniture". It was not in fact released until early December 1980. For the purpose of this recording the band consisted of Russell Handley, Garry Manley, Jim Heywood and Garry Dodd. When released it was issued under the Basilisk record label. Prior to resuming live performances on 1 November 1980 the band as then constituted was engaged in an intensive period of rehearsals.

On 1 November 1980 the band resumed its live performances under the name POPULAR MECHANICS. It continued so to perform until 20 December 1980. In all it played on 14 occasions. These performances, except for two in Canberra, were also at venues in and around the centre of Sydney. On two occasions it played as support to other bands. The venues ranged between those holding 80 up to 800 people. Again, there is no precise evidence as to the number of people present at these performances but I am satisfied that on some of these occasions too the audiences consisted of many hundreds of people.

On 24 November 1980 a press statement was issued under the name of Basilisk Records and announced the intended release on 1 December 1980 of three singles including "You Get The Picture/Furniture" by POPULAR MECHANICS. The press release included a statement that the band had "disbanded" after 75 performances but made it clear that a new band had been formed consisting of Russell Handley, Garry Manley, Jim Heywood and Garry Dodd. This record was released early in December 1980 and thereafter received airplay on a number of radio stations around Australia. The record cover had on it the name of the band in the form "POP-ULAR MECHAN-ICS". The record itself had on it "POPULAR MECHANICS" and underneath the words "Produced by Mr Bishop and Pop Mex."

This was not the first time the short form "POP MEX" had been used to describe the band. From its inception members of the band and other persons aware of the existence of the band in the music industry referred to it as "POP MEX" and "POP MECHS".

This second record was received by 2JJJ late in 1980 and upon receipt was played for a period once a day six times a week. It is still being played by 2JJJ about 3 to 4 times a week. This record has also been played and is still being played on other radio stations including 2XX (Canberra), 3RRR-FM (Melbourne) 4ZZZ-AM (Brisbane) 5MMM-FM (Adelaide) 3PBS-FM (Melbourne) and 2SER-FM (Sydney). These are not commercial stations but it is reasonable to assume that they command an audience of some thousands though probably substantially less than 2JJJ.

The evidence establishes that those who are interested in the music which POPULAR MECHANICS plays, are mainly young people between the ages of 12 and 30. At least half of them would probably range from ages 12 to 18, that is, would be of school age. There was evidence from a Mr Righi, the manager of a band booking agency, to the effect that those who attended the major venues mainly in the suburbs were business people, office workers and school students, whilst those who went to the smallest venues in the inner city were apparently more avant garde young people. At those larger venues at which POPULAR MECHANICS played, some of which held up to 600 and others up to 300, the crowds tended to be mixed in character. I concluded from this evidence that the larger the crowd the more conventional or conservative it was likely to be.

When the band performed at the various venues it was rewarded either by a fixed fee or by what is termed a door deal. Its normal method of remuneration was by a fixed fee.

Relevant to an understanding of this case is an appreciation of the music which bands such as POPULAR MECHANICS play. It is referred to as "the new music". Mr Stuart Coupe, a journalist and expert in popular music, who is the joint author of a book on the subject gave evidence about this style of music. The best way in which to describe it, is I think to quote parts of his evidence:-

"I would like you to describe to the court as best you can how you would define the new music?------- As we define it in the book I have been involved in writing, it is used to refer to rock and roll bands and performers that have appeared since 1975 and 1976. I guess it is important to note that at that time there was almost what you call a music revolution in that, a quite clear one at that, during the early period of the seventies there had been a particular style of rock and roll very much based around the super stars running around in limousines and an abuse of kids going to see them, and around 1975, 1976 and heralded by the Sex Pistols there was a whole upsurge of the new bands that started, and these appeared very quickly over a 12 month period. So, for the purpose of our book those people that began playing and being popular over the last few years, and it is quite an observable trend that they have occurred and like the much stronger return to small bands playing in pubs. There is a reaction against the huge concert syndrome. A lot of young bands are making their own independent records because they were reacting against the situation where you have a music company dangling a five year contract and saying: 'We are going to make you stars'; and they think, well we can do that ourselves, we do not need you. It was a feeling from young kids that it was more not what you said but how you said it; so they were not waiting until they had expensive equipment or expensive gear and a $20,000 light show before they attempted to play. They bought cheap instruments and did the best they could. That is a very noticeable development from about late 1975. Does that mean there are more groups by and large?------ There is a very noticeable upsurge in bands and more interest. Rock and Roll in the early seventies there was this appreciation of the super-star the Mick Jaggers the Paul McCartneys, the Rolling Stones, the Led Zeplins the Who. . . . . . . . . . . . . . . I think it was bringing rock and roll back to the way it was in the '50's and early '60's where in Liverpool, where the Beetles came from, there was something like 500 other bands playing in Liverpool at that time and instead of watching, it was saying: Let us have a go ourselves. That was very evident around Sydney and Australia. There was a massive upsurge in young bands doing very much the same thing as what was happening overseas."

It will be seen from these quotations that the "new music" as it is described is more the product of a period when hundreds of young bands appeared in reaction to the superstar period than a new style of music. The basic music which these bands play would still be described as rock and roll.

I have described in detail the activity of the band POPULAR MECHANICS up to the end of 1980. I have also indicated the nature of the crowds to whom they played live and the exposure their recordings had on radio. On this aspect of the case it remains to consider whether this activity had by early 1981 when POP MECHANIX came on the scene resulted in the name POPULAR MECHANICS becoming distinctive in the minds of the public and if so of whom and in what area. In considering the effect of their activity I found that articles which were appearing in various magazines at the time confirm the view I formed after considering the other evidence, namely, that by early 1981 the name POPULAR MECHANICS meant to young people, particularly in Sydney, a young band which performed live in the inner city area of Sydney and had put out the records I have referred to - in other words it had become distinctive of the band to which the applicants claim to belong.

It is common for articles to appear in the major daily and weekend newspapers regarding rock and roll music.

In addition there are magazines which are published devoted to such music and containing articles about the bands who are performing and in some cases lists of the venues or "gigs" where they are playing. Some contain the usual gossip column with snippets of gossip of varying degrees of accuracy about bands and their members. Articles from such magazines referring to POPULAR MECHANICS and POP MECHANIX were admitted in evidence. Some of them are published weekly, others fortnightly or monthly. Some are free. Their circulations range from 10,000 per issue to 35,000. Some are circulated nationally, others locally in Sydney. The usual procedure is to multiply the circulation by a factor of four to seven in order to get the actual readership of the magazines.

By early 1980 the band had caught the eye of Mr Stuart Coupe. He wrote an article in "The Sun Herald" of 27 January 1980 under the heading "Bands to watch in the '80's." One of the bands mentioned was POPULAR MECHANICS. He described them as follows:-

"A new Sydney band with all the elements that make good dancing rock and roll music. The Mechanics write catchy, original songs, move around on stage and have all the elements that make bands like Mental as Anything and Australian Crawl so popular. They have released an independent single and sooner or later a smart record company executive will drag himself from his office, see the band live and realise their potential."

In an issue of a magazine "Juke" dated 22 March 1980 they again received favourable attention:-

"Popular Mechanics are heralded as one of the most promising new bands to come out of Sydney in recent times. Their quirky sixties - orientated pop with a loud bass line and usual rhythm changes mixed with a good strong hit of hard rock has won them a staunch following. 'From Here to Obscurity' their first E.P. has been selling moderately well."

The magazine "Ram" on 4 April 1980 referred to them as "a hot new band".

In an issue of "Night Beat" on 29 March 1980, in an article by Stuart Coupe, they are referred to as "Pop Mechs".

Their return after a break from April 1980 to 1 November 1980 was greeted by an article in "The Daily Telegraph" of 27 October 1980 by Peter Botterell headed "Mechanics Fix Their Problem". He wrote:-

"Popular Mechanics, the band that entertained Sydney rock fans with their brand of sixties style pop last year, are back." . . . . . . . . . . . . the original band quickly attracted lots of attention and were offered a record contract with Alberts." The article went on to refer to the Basilisk label and continued:- "Most of the better bands in Sydney are finally getting the recognition they deserve and securing record deals - and about time - some of them could easily make the charts."

Mention was made of the band and its new single in an issue of "Tagg" magazine dated November 7 - 20 1980 and "Rolling Stone" of 13 November 1980. There was a further article in "Tagg" in its issue November 21 - 24 referring to the band and its new single.

On 1 December 1980 another article appeared in "The Daily Telegraph" by Peter Botterell referring to the band and its new single.

In "The Sunday Telegraph" of 14 December 1980 Ross Mclelland wrote:-

"The label - Basilisk - is the brainchild of Popular Mechanics keyboard's player Russell Handley and recording studio owner Martin Bishop. The first three releases on the label are singles from promising Sydney bands The Singles, Sekret Sekret and Handley's own Popular Mechanics."

These articles are important not only because they confirm the impression I have from the evidence as to the reputation surrounding the name POPULAR MECHANICS but it is proper to assume that they were read by a large number of young people and therefore they helped to create in their minds the view about POPULAR MECHANICS which by early 1981 I think the relevant public had.

On 29 December 1980 Peter Botterell in an article in "The Daily Telegraph" entitled "1980 - A Year To Remember" referred to them in fullsome praise:-

"Sydney is still the centre of the music business, nearly all the happening bands in the country are based in Sydney and the flourishing alternative scene is throwing up some great young bands. It's these independently minded bands that are the creative force in Australian music. Bands like . . . . . . . . Popular Mechanics . . . . . . . . . are like a breath of fresh air."

This could only have added to their reputation.

It was suggested that because of the break between 15 April 1980 and 1 November 1980 the band's popularity and reputation would have suffered. Evidence was given that it is not unusual for bands to cease playing for a period with the result that those who follow them and know them would not be surprised not to hear about them for a period. On the other hand it was said that it would not be in the interests of a band such as POPULAR MECHANICS not to perform live for a period of eight months.

However one is not left to speculate about the effect of this break in their live performances. I think it is clear that from the articles I have quoted, supported as they were by live performances of the band in November and December 1980, the release in December of another record and the continued radio play of their records, that their break from play did not destroy their reputation and that as at the end of 1980 and as at the time POP MECHANIX appeared on the Australian scene, amongst those interested in that type of music, they were a reasonably well known Sydney band.

Some attention was directed in the evidence towards the changes in the membership of the band and that this would have affected the reputation which the band had amongst those interested in the form of music it played. It is important to note that probably the best known member of the band, Russell Handley, has been in it since it's inception. It has had the same manager and Garry Manley has been a member since June 1979. Obviously changes in line-up can affect a band's listening audience as can changes in the style or sound of its music. Its popularity or appeal can also be affected by the quality of its recordings and the degree of its promotion. Evidence was given on these matters by people who are knowledgable in popular music but I am satisfied that despite the changes in line-up the name "POPULAR MECHANICS" at the times I have mentioned indicated to relevant members of the public particularly in Sydney a band that had been playing mainly at inner city venues that had released two singles. Many of them would, I believe, have known Russell Handley to be a member of the group. I also think its reputation would have been sufficiently high for it to be regarded as one of the more promising bands playing in the inner city area of Sydney.

Although of the view that the name POPULAR MECHANICS means to the relevant public the band in which the applicants are and have been interested, I do not think this reputation has been shown to extend beyond Sydney or Canberra. There is some evidence that it played late last year in Canberra and that its records have been played there regularly on radio station 2XX. On the basis of this evidence and having in mind the relative proximity of Canberra to Sydney I am satisfied on the balance of probabilities that the name POPULAR MECHANICS does have this reputation in Canberra as well as Sydney.

However, although its records are played and sold in other cities and some of the magazines I have referred to circulate there I am not satisfied from the evidence before me that POPULAR MECHANICS among persons who attend live performances and buy records of rock and roll music in those places means the Sydney band in which the applicants are interested. It may well be the fact but the evidence in my view does not establish it.

The band did not give a live performance after 20 December 1980. However the band's new release continued to get publicity. For instance, the issue of "Rolling Stone" of 8 January 1981 contained a reference to the single "You Get the Picture/Furniture" by POPULAR MECHANICS. It said:-

"Another improvement on previous records. Popular Mechanics come up with a clever arrangement on "Picture" with a great bass line and organ fills. Quite commercial in a way. 'Furniture' is a track with pace and an excellent production. A lot stronger than the A-side".

In the issue of Ram of 23 January 1981 Kent Goddard reviewing the record refers to this record in the following terms:-

"Bright energetic pop from this Sydney band which couldn't help but win me over with its tinny Farfisa organ backing and jumpy bass line. Like the other two debut Basilisk platters it is highlighted by an excellent clean production. This record isn't going to put a big dent in the charts, but it is pleasant listening and a sign of perhaps better things to come."

A number of things did happen which, the respondents claim, had the effect of leading them and others to believe that the band had split up and was no longer in existence.

On 28 December 1980 Jim Heywood and Garry Dodd left the band and Martin Bishop joined it.

However in the issue of "Tag" of January 22 - February 5 1981 in the gossip column it was suggested POPULAR MECHANICS was finished:-

"Looks like Popular Mechanics are no more, and that Russell Handley will be joining The Numbers on keyboards. And speaking of Pop Mechs, original singer Greg Foster made a return to the stage on New Years Eve at the Rock Garden with Jump Vision".

After that date there were a number of articles referring to Russell Handley's involvement with another group called "The Numbers". In the issue of "Juke" of 28 February 1981 it was written:-

"The Numbers are now a four-piece with the addition of guitarist/keyboardsman Russell Handley, from fellow- Sydneysiders Popular Mechanics."

A more lengthy article appeared in the issue of Ram of 3 April 1981 by one Greg Taylor who wrote:-

"Keyboard player Russell Handley has been a man-about-the-small-Sydney-band-scene for some time, both as a member of Popular Mechanics and as a partner in Basilisk records. The former is no more ('We didn't break up - we retired') the latter continues, while Russell becomes a Number. Not that it's all totally new for him; he played on demos for their album ages ago."

This article had in fact been overtaken by events. Late in March the arrangement which Russell Handley had with THE NUMBERS was terminated. On March 30, 1981 in an article by Roger Crosthwaite it was announced in an article headed "The Numbers Are Soon to Divide":-

"Anne and Chris Morrow, the brother and sister team at the core of the band, are reportedly not satisfied with the sound since the addition of former Popular Mechanics keyboard player Russell Handley. So Handley is to leave the band. . . . . . "

Similar articles appeared in magazines around this time.

Considerable evidence was given relating to the arrangement between Russell Handley and THE NUMBERS. He had played with them before for the purposes of making demonstration tapes. He denies that he joined THE NUMBERS as a member of the band and claims that he was there as a paid performer for the purpose of a series of live performances. He also says that whilst he was touring with THE NUMBERS away from Sydney in other capitals, he kept in touch with members of POPULAR MECHANICS particularly Martin Bishop and attended to the distribution in those cities of the record "You Get The Picture/Furniture" by POPULAR MECHANICS. He also gave evidence that he had been asked to sign a contract with THE NUMBERS but declined to do so. Mr Arch Brown, the Tour Manager of THE NUMBERS gave evidence and he asserted that Russell Handley had become a member of the group and that he was liable for the debts. He gave evidence to the effect that throughout the whole period Handley was with THE NUMBERS he was paid a fixed sum of $150 per week as were the other members of the band. Although he alleged that Handley was responsible for the debts of the group he gave no evidence of any contribution that Handley had made apart from the fact that expenses had been deducted from the total amounts received as well as the weekly payments of $150 to performers. Both Russell Handley and Mr Brown gave evidence that towards the end of March, Handley's services were terminated and that from then until his tour with them was finished in April he continued to receive the weekly sum of $150.

I do not regard Mr Brown as a reliable witness and on the balance of probabilities I am satisfied that Russell Handley was telling the truth in claiming that he did not join THE NUMBERS as a member of that group. The fact that he refused to sign a contract with them is in itself a strong circumstance telling against his having become a member. However, this finding, of itself, may not be of any great significance in the case. For the fact is he was not engaged in live performances with POPULAR MECHANICS during that period and as a result of his playing with THE NUMBERS an impression was certainly created that POPULAR MECHANICS may have broken up, he having been an original and very important member of it.

The real question in relation to this matter is whether, by the time POP MECHANIX started their Australian tour, the relevant public would have formed the view that POPULAR MECHANICS had ceased to exist and that therefore they could not possibly have been misled into thinking that POP MECHANIX was POPULAR MECHANICS. I have formed the view from the evidence that although some members of the public would have believed this there would still have been a substantial number who knew the name and who may have still heard its records who believed that the band was still about and distributing its records. Many would also have expected it to start playing live again. It is clear that during the period when Handley was with THE NUMBERS activity on behalf of POPULAR MECHANICS was continuing.

For instance at this time Martin Bishop who with Handley was running the Basilisk label, took steps to terminate the distribution arrangement which he previously had with Larrikin Records to distribute the records of POPULAR MECHANICS and those of other bands associated with Basilisk. This happened early in March 1981 and thereafter distribution of POPULAR MECHANICS records was made by Basilisk itself to numbers of record shops in capital cities in Australia. On 1 March 1981 a press release was issued by Basilisk relating to its records including "You Get The Picture/Furniture".

The evidence establishes that approximately 700 records of POPULAR MECHANICS' single "You Get The Picture/Furniture" were sold to the public as a result of distribution by Larrikin Records in the period December 1, 1980 to the end of February 1981 and that up to 300 such records may have been sold since. I say "may" because although the evidence establishes that there were some sales it is difficult to be satisfied on the evidence as to the exact quantity. Mr Bishop gave evidence which I am prepared to accept as a rough estimate that approximately 300 have been sold to the public. Most of the distributors have paid for the records delivered to them since early March.

Evidence was also given that during the period up to the hearing of this matter, the members of the band POPULAR MECHANICS have recorded certain jingles for 2JJJ and have received approximately $1815 for this work. The jingles are used for station identification and no reference is made in them to the band. Evidence was also given, which I accept, that in the period from early April the band has been rehearsing with a view to bringing out a new record. This involves considerable time and numbers of rehearsals. The final recording involves marrying a number of tracks to produce the final work. The tracks done to date were produced to the court.

I am satisfied from this evidence that whatever impression may have been created the current members of POPULAR MECHANICS have not intended to abandon the use of their name or further live performances under the name POPULAR MECHANICS. In relation to the latter, a Mr Wild gave evidence that he was employed by an agency known as Nucleus and this year has been engaged in finding venues for the band in the suburbs of Sydney. As indicated earlier the band had played mainly in and around the inner city and the evidence established that they were not as popular at suburban venues. Mr Wild, at the request of Mark Handley, was seeking to find venues for the band but had been unsuccessful. Although his evidence was, in some respects, unsatisfactory and vague, I am satisfied on the evidence that he and his agency have been taking steps to find venues for POPULAR MECHANICS, albeit unsuccessfully, in the suburbs of Sydney. He has not sought to find venues in the inner city because this was a matter the band itself could look after.

Some suggestion was made that Garry Manley had left the band and had joined a band known as THE TACTICS. I do not think that the evidence establishes this. Even if he was playing with THE TACTICS it would not follow from that that he was leaving the band POPULAR MECHANICS. He is still an applicant and although in these proceedings he has not given evidence I am not prepared to assume that he has forfeited his interest either in these proceedings or in the continuation of the band POPULAR MECHANICS.

Considerable evidence was directed to conversations which took place between the applicant, Martin Bishop, and employees of CBS between late February and the end of March 1981. It was submitted on behalf of the respondents that the applicants had offered to sell the name to CBS for $15,000. Mr Bishop strongly denied this though he did say that he had offered to negotiate for the use of the name. Having heard the evidence and noted the demeanour of the witnesses I think the conversations were at times heated and emotional. Obviously Mr Bishop strongly resisted the idea of the name POP MECHANIX being used without the consent of the applicants. One of the reasons would, I feel, have been the effort and expense that had gone into the promotion and development of the band POPULAR MECHANICS since its inception. The idea of another band with a very similar name entering the market with the promotional capacity of CBS behind it would naturally cause strong objections from him.

I have considered this evidence but I am not satisfied that in his conversation with Mr Scard, Mr Bishop offered to sell the name to CBS for $15,000. It is quite likely that in the heat of the conversation a sum of $15,000 was mentioned as an amount which had been invested in POPULAR MECHANICS and that because Mr Bishop said he was prepared to negotiate over the use of the name Mr Scard obtained the impression that Mr Bishop was willing to sell for $15,000. Neither Mr Bishop nor Mr Scard is a person whom I would judge to have deliberately told the court an untruth in evidence. On this matter the onus lies on the respondents and I am not satisfied that what the respondents allege was said. If it had been said to Mr Scard I would have expected it to have been repeated to Mr Russell but, although he says a sum of 15,000 or 20,000 was mentioned by Mr Bishop, it was in relation to an amount that had been spent on the band and that he wanted back. On Mr Russell's account of the conversation the impression I was left with was of Mr Bishop being incensed that CBS was stealing their name - not an impression of a man who was anxious to negotiate a sale of the name of a band that was almost defunct and of whose name he was anxious to dispose.

The respondents' purpose in pursuing this argument was, I assume, to indicate that the applicants had really lost all interest in the band and had no real intention of using the name again. However, as I have indicated, this is not the view I have formed.

Mr Bishop gave evidence, supported by Russell Handley, that the intention was to release the new single and resume live performances in June. Whether this will be realised, particularly having in mind the hearing of this case and its interruption of rehearsals, may be open to question. I am however, satisfied, on the evidence, that the applicants have an honest intention to pursue the production of another single and to resume live performances in the near future.

The first five respondents are the current members of the band POP MECHANIX. It was formed in New Zealand in April 1979 and was originally known under another name SPLASH ALLEY. It adopted the name POP MECHANIX in December 1979. The name first considered was POPULAR MECHANIX but this was shortened to POP MECHANIX as the band were making or manufacturing pop music. The letters IX, instead of the letters ICS, at the end of the word "Mechanics" were, it was said, adopted for two reasons. First, because it was considered to be smart and, secondly, to prevent the name sounding the same as that of the magazine known as Popular Mechanics.

At first the band consisted of four of the respondents. An additional member, the first respondent, joined the band in October 1980. It made its first recording in August 1980 which was released and distributed in New Zealand through C.B.S. New Zealand. A second recording was released in October 1980. A third recording "Jumping Out a Window" was released in New Zealand in February 1981 on XSF Records and distributed by CBS Records New Zealand. Late in January 1981 the band was one of a number that performed at the Sweetwater Music Festival near Auckland and it succeeded in attracting favourable attention. Mr Stuart Coupe attended the Festival and witnessed the band's successful performance. An article on the Festival was written by him and published in "The Sun Herald" on 1 February 1981. In it he wrote, inter alia:-

"New Zealand Pop Mechanix were the surprise success of the weekend. They played before Split Enz on Saturday night performing a powerful, vibrant set of rock and roll that earnt them the most enthusiastic audience response of the whole festival. After their festival appearance Pop Mechanix went into an Auckland studio to record some material which is being produced by Split Enz keyboard player, Eddy Rayner."

Reference was also made to the group in an article on the Festival published in an issue of "Juke" dated 14 February 1981 in the following terms:-

"The other biggie is Pop Mechanix another tough rock act with some great toons. Split Enz Eddy Rayner was so knocked out that he is producing some of their stuff."

The music recorded by it and referred to in these articles is apparently the single "Jumping Out a Window". SPLIT ENZ is a band which also originated in New Zealand which came to Australia some years ago and which has since enjoyed considerable success both here and overseas. Following its success at the Festival in New Zealand it was apparently decided that the band POP MECHANIX should undertake an Australian tour and that it should do so as a support in Australia to the group SPLIT ENZ at several engagements between 17 March and 16 April 1981. It also appears that at about the same time CBS Australia became interested in signing a recording contract with the group covering all countries outside New Zealand. Discussions took place between representatives of CBS and the group and a New Zealand company, XSF Records (which had already signed them up to a recording contract) and on 15 March 1981 a contract was entered into between CBS and the group which covered recordings by the group for all countries outside New Zealand. The contract was for a period of a year with an option to extend.

There is no evidence that the New Zealand group derived their name from the name of the Australian band POPULAR MECHANICS and, they claim, and the evidence is, that they first became aware of the existence of the Australian band in February 1981. This was prior to their coming to Australia and prior to signing up with CBS. The negotiations in relation to the contract were undertaken on behalf of CBS by Mr Karpin, its Artist and Repertoire Manager, and later by Mr Scard, its Business Affairs Manager. Mr Karpin had become aware of the Australian band POPULAR MECHANICS late in 1980 and about 27 February 1981 had a conversation with the applicant Martin Bishop during which the existence of the New Zealand group, POP MECHANIX was mentioned and Mr Bishop warned that it would have to change its name. Mr Scard gave evidence that he was unaware of the existence of the Australian band at the time he was negotiating the contract.

A press release dated 17 March 1981 was issued by CBS regarding the signing of POP MECHANIX. It contained the following statement:-

POP MECHANIX SIGN WITH CBS RECORDS AUSTRALIA Pop Mechanix, one of the hottest, most exciting bands to emerge from the New Zealand rock scene in recent years, have signed with CBS Records Australia. A young and vibrant five piece rock 'n' roll outfit, Pop Mechanix generated considerable interest from major Australian record companies following their powerful performance at the Feb '81 NZ Sweetwater Music Festival where they reportedly received the most enthusiastic audience response of the whole week-end event. The bands debut CBS single, "Jumping Out A Window", produced by Split Enz keyboard player Eddie Rayner, will be released on 17 March, the date which also marks the commencement of the Pop Mechanix Australian tour with Split Enz (see attached tour itinerary). POP MECHANIX are: Andrew Snoid - Vocals Paul Scott - Bass Paul Mason - Guitar Kevin Emmett - Drums Chris Moore - Organ, guitar

This press release was distributed to over 300 journalists, disc jockeys, radio programmers and others in the musical industry. On the same day, 17 March, the New Zealand group commenced live performances in Victoria and since then has performed regularly in Australia almost every night at venues in Melbourne, Sydney, Canberra and other cities. On 29 and 30 March they played as support to SPLIT ENZ at the Regent Theatre, Sydney, and their appearance was the subject of another article by Mr Coupe in "The Sun Herald" dated 29 March 1981. Much of the publicity they received related to problems they were having over the name and either the threat of proceedings or the fact that proceedings had been brought. Mr Coupe's article of 29 March was very complimentary. He said:-

"Having seen Pop Mechanix playing live and heard their single I can thoroughly recommend them to anyone interested in exciting rock and roll."

In New Zealand the band had badges made with the lettering POP MX. on them. These were widely distributed by them in New Zealand and 20 to 30 were distributed in Australia. The band also used a backdrop with the letters POP MX on it and for a period this was used in their Australian performances.

The band has made bookings through a booking agency managed by the witness Mr Righi known as Harbour Promotions and their present intention is to stay permanently in Australia. After the record "Jumping Out a Window" was released by CBS it was distributed to at least 250 stores known as chart stores and probably to another 300 or 400 other outlets. Altogether approximately 1873 records had been distributed to stores in all States excepting Tasmania as at 26 May 1981 and sales of those records have been made to the public since their distribution. They have not lived up to expectations in any State except New South Wales.

In addition to the promotion work done by CBS in connection with the release of their single "Jumping Out a Window" CBS arranged for a film clip of the band to be produced and released to television stations. Arrangements were made between CBS and the ABC program "Countdown" for the group to appear live on "Countdown" and also for the clip to be shown. On one of the recent "Countdown" programs they appeared live. On another the film clip produced by CBS was shown. The "Countdown" program is televised on a Sunday evening and repeated the following Saturday so that in effect there have been four appearances by them on this program. According to the Co-ordinator Mr Meldrum it has an audience of 3 million people. These appearances have occurred since the commencement of these proceedings.

It will be apparent from the above that most of the exposure to the public by the group has occurred since April 13 1981 when these proceedings were instituted. As stated earlier much of the publicity concerned the group POP MECHANIX and has referred either to these proceedings or the possibility of problems arising out of the use of the name. For example, in the article by Stuart Coupe on 29 March 1981 it was said after referring to POP MECHANIX supporting SPLIT ENZ:-

"It looks as though they face some problems with their band. A Sydney band called Popular Mechanics who played around the local pubs on and off the past 18 months are apparently upset about the New Zealand band using the name in Sydney. I Imagine the name problem will have been sorted out before tonight's concert."

On the same date in "The Sunday Telegraph" there was a similar type of reference in an article "Handley to sue CBS over name". On April 11, 1981 in the magazine "Juke" reference was made to the intention to sue because of the confusion between the two names POPULAR MECHANICS and POP MECHANIX. Again in "Roadrunner" April 1981 there was a similar reference. In "Rolling Stones" of 16 April 1981 an article, in part, read:-

"An unfortunate clash of names has led to the fledgling independent record company Basilisk planning to take out a temporary injunction against CBS using the name Pop Mechanix. It seems that Pop Mechanix is the name of a band from New Zealand that was formed some 9 months ago and has recently been signed here by CBS. . . . . . . . . . . . The Band has also been touring as a support act with Split Enz. However the Australian band Popular Mechanics (also known as Pop Mex) who have been around a good bit longer than nine months are somewhat dismayed at these developments, especially as they have a current single out called "You Get the Picture" and have further performing and recording plans."

The record released by CBS has on it "POP MECHANIX" and a reference to the three songs recorded on it. The record sleeve, apart from the art work has at the top on each side of the cover POP MECHANIX in large lettering and at the bottom the names of the recordings. There is no reference to the band being a New Zealand band.

It is clear from the evidence that at the time the individual respondents commenced to perform here they were aware of the existence of an Australian group known as POPULAR MECHANICS. It is also clear that Mr Karpin, Artist and Repertoire Manager for CBS was aware of the existence of the group from late in 1980 and that in a conversation between him and Mr Bishop at the end of February 1981 he knew that those interested in POPULAR MECHANICS took the view that the New Zealand group would have to change its name before it performed here. The venues at which they have played include a number in the inner city area of Sydney.

Another relevant matter is the similarity between the two bands and the audiences they would attract.

Mr Stuart Coupe who has had considerable experience of popular music particularly of the "new music" and is one of the leading Australian critics on the subject has seen both groups play and has listened to their recordings. When asked what similarities he would draw between the music played and performed by the two groups he said he found them to a degree quite similar. They played quite vibrant bouncy pop music with very memorable distinctive choruses. Both are quite enjoyable to watch on the stage and are of a similar style. He said the sort of music both bands are playing would appeal to people of 12 to 13 right up to approximately 30. It is very accessable lightweight catchy dance music. He also thought that the same age group of persons would be those who would be likely to buy the sort of music the two bands are producing. It does not demand too much and it is ideally suited to people of school age, that is, up to the age of 17 or 18, who would constitute approximately half of the market. He pointed out that the younger people are in a lot of cases, because they have less money, more inclined to buy one single as opposed to going out and spending $9 or $10 on an L.P. record.

Other witnesses gave evidence about the two bands but Mr Coupe has had reason to study the style and performance of both and the nature of the audience whom they attract. I regard him as an impartial witness. Where he is in conflict with others on these matters I would adopt his evidence.

He was also asked about the effect of absence from live performance by such bands and what was of interest to audiences who attend their live performances. He said he thought absence could make people expectant. As at May 1981, especially in the light of the court case, he said there is an interest in the whereabouts of POPULAR MECHANICS. It is a very common thing for the management of bands or the bands themselves to take themselves off the road or away from public performance for an extended period because in many instances that serves to increase interest in the band. People begin to ask what's happening to them, what are they doing. It is quite a common move by bands themselves not to appear for quite some time. He thinks that in the case of POPULAR MECHANICS because they have not performed for some time and their record is a few months old there is an interest in them. He said that the majority of young people go out to see regular bands and tend to go more to see the band rather than the personalities on stage. Whether they have swapped a couple of members is neither here nor there.

His evidence and one's general knowledge of people leads me to the view that those who attend live performances or who buy records of rock and roll music are no different to any other cross section of the consuming public. Some will be very discerning: others not. Some will have a very special knowledge of the subject: others only a general understanding. Some will know every detail about a band others will only know it by its name. Some who hear it will buy records recalling the name of the tunes it plays: others will buy them remembering only the name of the band and wanting a record of that band Others will only have an imperfect recollection of the band's name and of how it is spelt.

The evidence also establishes that the records of POPULAR MECHANICS and POP MECHANIX are sold in the same retail outlets. They are also likely to be found following one another in the same rack. Mr Alfonso in his evidence provides an instance where both records are sold in the same shop and where confusion has occurred in the minds of customers because of the similarity of names.

It remains to consider the issue of misleading and deceptive conduct. The conduct which is alleged to be misleading or deceptive or likely to mislead or deceive on the part of the individual respondents is their giving live performances under the name POP MECHANIX or POP MX in various parts of Australia, the arrangements they made with CBS and helped to carry out in Australia to record their music for distribution and sale here and their involvement in the promotion of their records including their appearances on television. On the part of CBS it involves the arrangements they entered into and carried into effect here regarding the engagement of POP MECHANIX as recording artists, the promotion, distribution and sale of their recordings under the name POP MECHANIX, the making of a film clip for promoting the group and the distribution of it to television studios and the arrangements which they made with the A.B.C. for the appearance of the group on the National program "Countdown" either live or through use of the film clip. It is alleged that all the respondents intend to continue this or similar conduct.

It is also alleged that the individual respondents through their conduct have either aided or abetted or been knowingly directly or indirectly concerned in the wrongful conduct of CBS and are therefore liable to be restrained under s.80 of the Act.

One issue which arises in applying s.52 is whether what has been done has been done "in trade or commerce". These are very wide words. In my view they bear the same meaning as they do in s.51(i) of the Constitution. They are not confined to the buying and selling of goods and encompass the provision of services. They include the provision of the intangible as well as the tangible. It was urged upon me that what was happening was that the individual respondents were engaged in pursuing their profession as musicians. In my view entering into arrangements to provide musical entertainment live at a venue for reward is clearly engaging in trade or commerce. Playing live at such venues pursuant to such arrangements is conduct engaged in "in trade or commerce". The Act itself specifically includes within the definition of "services" the provision of benefits pursuant to contracts to provide entertainment (see s.4(1)). Playing a musical instrument in itself may not be "trade or commerce" but when it is done for reward it is something done "in trade or commerce". The promotion sale and distribution of records by CBS is also clearly conduct engaged in in trade or commerce.

The gravamen of the complaint against the respondents is that they have used deceptive names POP MECHANIX or POP MX to identify the band, that they intend to continue using them and that their conduct has misled or deceived the relevant public in Australia or is likely to mislead or deceive them.

In my opinion the two names in question are very similar in sound and spelling. The witnesses employed by CBS who gave evidence for the respondents conceded that the names were similar. Mr Karpin said they were very similar. He hoped to distinguish them through music. They claimed however that nobody in the music industry would be deceived. It was put on behalf of the respondents that even though the relevant public might be confused they were not likely to be deceived and that there was no evidence of deception.

Counsel for the respondents relied upon the decision of the Full Court of this Court in McWilliam's Wines Pty. Limited v. McDonald's System of Australia Pty. Limited ((1980) 33 A.L.R. 394). In that case there was evidence that members of the public were led to wonder whether there was some arrangement between McWilliam's Wines and McDonald's over the use by McWilliam's of "Big Mac" on McWilliam's wines. They were confused but the Court held they were not deceived. I have considered the judgments in that case but do not think they require me to hold that in this case there can be no deceptive or misleading conduct. There at least the majority of the Court seems to have regarded the words "Big Mac" as descriptive as had been the case with the words in Hornsby Building Information Centre Pty. Limited v. Sydney Building Information Centre ((1978) 140 C.L.R. 216). Here the relevant words are not descriptive. Furthermore, I do not regard their Honours as having intended to lay down any new principles, particularly in relation to cases where a trader has sold his product under a non-descriptive name which has a reputation attaching to his business in the marketplace and where another trader has sold identical or similar goods in that market under a similar name. I think it is clear from previous decisions of this Court and the High Court that, even if, in such a case, the defendant's conduct does not amount to passing off, the conduct can be a breach of s.52. In such a case it matters not that a member of the public, if he or she troubled to make enquiry, would discover that his or her belief that the products were made by, or in some way associated with, a trader they were familiar with, was unfounded. The essential difference between such cases and the facts as discussed and dealt with in the Hornsby Building Information Case and The "Big Mac" Case is that where the name used to identify a trader's product or services is descriptive it is much more difficult to establish that a defendant has been guilty of deceptive or misleading conduct or of conduct that is likely to deceive or mislead. Where, however, a trader's product or services are known to the public by a particular name, which is not descriptive, a trader who uses a similar name, is in real jeopardy of engaging in misleading or deceptive conduct offensive to s.52.

These principles apply equally in my view to the circumstances of this case.

The name POPULAR MECHANICS is not a descriptive name. It is not one therefore which is unlikely to acquire distinctiveness because of a descriptive character. It may well have been borrowed from the name of a magazine which has been on sale for many years. However it is not suggested that when it is used by a band it is likely to be associated in any way with the business of those who put out that magazine. The evidence in my view establishes that at the time the respondents commenced the use of the names POP MECHANIX and POP MX. the names POPULAR MECHANICS and POP MEX or POP MECHS had quite clearly come to identify to the relevant public a band which had played live for several years mainly in the inner city area of Sydney and which had put out records under those names. When another group enters the market using names very similar in sound and spelling as the names of their group, I think there is a very real likelihood of the public believing that it is the same group as the one they have known. In my opinion this is what can happen here and I regard the use of the names POP MECHANIX and POP MX without more by the respondents as likely to mislead or deceive. Their use may already have misled or deceived but proof thereof is not necessary.

It was pressed on me that the age group who are likely to follow these bands are themselves unlikely to be deceived because they are discerning. However, as I have already indicated, I am left with the impression from the evidence, particularly that of Mr Coupe, that in essence the cross section of the relevant market is no different in character from that which is interested in the acquisition of other goods or services. I am satisfied that there would be a substantial number of those interested in bands of this description and who know the band POPULAR MECHANICS and their reputation who would be led to believe from the use of the name POP MECHANIX or POP MX that it was the same group and would either attend their performances or buy their records believing that to be so. I think there would be many, confronted by a reference to a band called POP MECHANIX, who would be confused and unless they were assisted to resolve their confusion they would be likely to act on the basis of a belief that it was the same band they knew, namely, POPULAR MECHANICS. In this event they could properly be said to have been misled or deceived not by their own confusion or misconception but by the conduct of the respondents. There is no suggestion on the part of the respondents that they have done or intend to do anything to distinguish the two bands, e.g. by adopting a name such as "NEW ZEALAND POP MECHANIX". Obviously if people are told facts at the time they are confused which remove their confusion they may not ultimately be misled or deceived. However, there is no certainty in this case that their confusion will be removed either in deciding to attend a performance or buy a record. Nor is it a case where confusion has to be accepted because the applicants in this case have chosen a descriptive name or a name that is widely used in the industry.

In this case, the conduct which is offensive to s.52 commenced at least as early as 17 March when the band POP MECHANIX commenced to play in Australia and I have no doubt that there were people who hearing of the band POP MECHANIX playing or of a record being put out by a band of that name or of a band of that name supporting SPLIT ENZ believed not simply that there was a chance it was the band they knew as POPULAR MECHANICS but believed that it was the band POPULAR MECHANICS. Although there is no actual evidence of it, I think it is quite possible that some people acted on the basis of that belief in attending performances or buying records.

It was also put in argument that as a result of the exposure which POP MECHANIX had had, the public would no longer be likely to be misled or deceived even if, as I understand the argument, there may have been confusion in their minds at an early stage. It is true that the band POP MECHANIX has played very regularly since it commenced in Australia, particularly in Sydney and Melbourne and that there has been a degree of exposure on the program "Countdown". There have been some sales of their records (which I am prepared to assume may have been equivalent to the number distributed) and a slight exposure on radio. However, I have no doubt, as I have already indicated, that the relevant public still regards the name POPULAR MECHANICS and to some extent the name POP MEX as referring to the band in which the applicants are interested. I am also satisfied that the applicants intend to continue to sell and issue records under the name POPULAR MECHANICS or the name POP MEX and to resume live performances using that name. In these circumstances whatever the degree of exposure of POP MECHANIX that may have occurred, I think it will only lead to deception of the public if the two bands continue to operate in the same market using their respective names. I take this view because, in my opinion, the names are so similar that, unless some step is taken to distinguish them, members of the relevant public are likely to be deceived and misled.

In so finding I have left out of account, as I am bound to, any right or goodwill which the applicants may have in the name POPULAR MECHANICS. Obviously, as Mr Karpin agreed, it is difficult enough for a band to succeed in the highly competitive field of popular music. Success does not come easily and apparently luck as well as expertise can be involved in it. To the extent to which s.52 is directed to ensuring that the marketplace is free of unfair practices by way of deceptive or misleading conduct, it is important to those engaged in trade and commerce by the provision for reward of musical entertainment that they not be subject to such conduct so that no further impediment than is necessary is placed in their path in the hard world of competition they face. In this sense s.52 is ensuring to some extent that the marketplace is as far as practicable under federal law fair for competitive purposes to both consumer and trader alike.

The view which I have formed is assisted, though, I must stress, not dependent on, the evidence so far as it relates to confusion. It will be apparent that I have formed this view based on the close similarity of the names, the nature of the relevant consuming public and the similarities between the bands and the venues in which they are likely to play and the fact that their records are being sold in shops alongside one another in various parts of Australia. The evidence, however, does confirm the view I have formed.

I have already referred to a number of articles published in the period since POP MECHANIX began to perform in Australia. It is common for the intended live performances of bands to be publicised in these magazines with the date and the venue. In the issue of "Ram" of 17 April 1981 the following entry appears advertising the performance of POP MECHANIX at Sergeant Pepper's night club and Wesley College on 8th and 10th April:-

"POPULAR MECHANICS 8 Sjt. Peppers Night Club 10 Wesley College, Newtown".

There is no evidence as to how this came about. Unless it was deliberate on the part of the respondents or the magazine (and I am not prepared to assume it was) it is obvious that somebody has been so confused in accepting the instruction to publish the performance of POP MECHANIX on those nights that they have used the name POPULAR MECHANICS.

In an issue of "Tag" dated May 14 - 28, 1981 there is an article on POP MECANIX by a journalist Steve Lane. It commences -

"There I was, sitting in a room at the Diplomat Motor Inn, sipping coffee, making small talk and wondering what the hell I was doing there. I was under the impression that I was going to have a rave with Sydney band, Popular Mechanics, instead, I am introduced to Andrew Snoid, lead vocalist for New Zealands Pop Mechanix. . . . . . . . . . . dilema]]]"

It was claimed that this was not evidence of confusion on the part of Mr Lane and that he should have been called. Be that as it may, it does provide an instance in the relevant journals where the possibility of confusion is drawn attention to and only cleared up after it is made clear that it is the New Zealand band not the Sydney band.

Mr Coupe gave evidence of a specific occasion where a friend of his girlfriend (whose name he could not recall) was surprised that the Sydney band was playing with SPLIT ENZ saying -

"Is it not odd that the Sydney band is supporting Split Enz because at this point they are not at a level where you would expect them to be supporting a band of Split Enz stature."

In this case the deception appeared to be working in favour of the band POPULAR MECHANICS. This evidence was admitted over an objection from Counsel for the respondents. I admitted it on the ground that evidence of what people in the relevant market said indicating confusion was as much evidence of that fact as if they came and gave the evidence themselves. Evidence of what customers actually say in a shop when asking for goods could be admitted on a similar basis. It is not the same as evidence of what a person states his or her state of mind to be. Such evidence, if admitted is of course of limited weight.

One of the submissions put on behalf of the respondents was that the evidence established that people in the music industry would not be likely to be confused. I am not sure whether, in giving such evidence, witnesses were intending to refer only to those actually involved in the industry as distinct from those attending performances and buying records. However, what is significant, is that a number of the witnesses who are involved in the industry as such, did give direct evidence of being confused. For instance, Mr O'Grady who is the editor of the magazine "Ram" gave evidence that he knew the band POPULAR MECHANICS and was aware of the records which they had released. He also knew about the band POP MECHANIX and that it had received a lot of publicity in recent months. When asked whether he would confuse the band POPULAR MECHANICS with POP MECHANIX he said "yes and no". He said that he did originally actually confuse them when he was over in New Zealand at the Sweetwater Music Festival. He said:-

"I saw the name Pop Mechanix and until it was explained to me that Pop Mechanix were a New Zealand band I was unable to separate the Popular Mechanics and Pop Mechanix".

He went on to say he was wondering if the Sydney band had come over and somebody had spelt their name wrong.

Another witness, Virginia Madsen, a student who has been working at an F.M. radio station, 2SER, was aware of the band POPULAR MECHANICS and had been involved in conducting interviews with the band early in 1981. She said she probably became aware of the band POP MECHANIX in early April. When asked what was in her mind at the time that she first saw the name POP MECHANIX she said "I just thought it was still POPULAR MECHANICS because I was not aware there were two bands". She held that impression until, shortly after then, she saw an article which said that there were two bands, a new band and POPULAR MECHANICS.

Mr Karski is a record producer for Albert Productions the recording division of J. Albert & Sons Pty. Limited, Music Publishers of Sydney. The Sydney band, POPULAR MECHANICS had been known to him and discussions had taken place early in 1980 with POPULAR MECHANICS with a view to a recording contract being entered into between the band and Alberts. No contract actually eventuated. He said that he first heard of POP MECHANIX about a month or two before he gave evidence. He thinks he saw a record sleeve on the wall at CBS and enquired about it and was told it was a New Zealand band. He said that when he first saw the poster or record sleeve he was under the impression it was a Sydney band but it was pointed out to him in fact it was a New Zealand band. He said that the Sydney band, POPULAR MECHANICS used to call themselves POP MEX as an abbreviation for POPULAR MECHANICS and he concluded from seeing the name POP MECHANIX that it was the same band in fact as POPULAR MECHANICS.

Mr Righi the booking agent gave evidence that the person who handles the acts at one of the venues, the Manzel Room, when approached about his using the group POP MECHANIX, thought it was POPULAR MECHANICS. When it was explained to him who POP MECHANIX were he went ahead and booked them and has done so since. He wasn't able to recall any other instances.

The only record shop retailer who gave evidence was Mr Alfonso called on behalf of the respondents. He had been a sales representative with CBS and presently manages a medium size record shop at Crows Nest. He gave evidence to the effect that when records of POP MECHANIX were first brought round by the CBS rep. he naturally asked him whether it was the same band as POPULAR MECHANICS. He stated that he stocked records of POPULAR MECHANICS and that in the past four to five months about five or six of them had been sold. He had also stocked a record produced by CBS by POP MECHANIX and since the middle of March about two or three of these had been sold. He had served customers who had purchased both POPULAR MECHANICS and POP MECHANIX records on several occasions. Soon after the single by POP MECHANIX was released he was asked by a customer whether it was the same band as POPULAR MECHANICS. He says he informed the customer that it wasn't. This apparently has happened on other occasions. They have questioned whether or not the name is the same band. They had possibly assumed from what they told him that the band POP MECHANIX was the same band as POPULAR MECHANICS and they wanted him to clarify the position.

This evidence in my opinion confirms the view I have formed. Even though it may not indicate that people acted on the faith of the band, POP MECHANIX, being the same as POPULAR MECHANICS, the possibility of their doing so existed without information being given to them removing their mistaken belief or confusion. As I have already said there is no guarantee that people will have such information provided to them and therefore they may well act on the basis of a mistaken belief. Whether on occasions it would be to their detriment to do so is not to the point. In my view it is sufficient under s.52 if they are deceived or misled or likely to be deceived or misled whether or not it would be detrimental to them to act on the faith of their mistaken belief.

Some evidence to the contrary was given by witnesses called by the respondents. Mr Ian Meldrum, the Co-ordinator of the program "Countdown" had originally known of POP MECHANIX as a New Zealand group and he was able to distinguish them from the band POPULAR MECHANICS. He wouldn't agree that the names were confusing and relied on the different spelling. He would agree however that they were similar.

Mr Karpin agreed that the names were very similar but wouldn't agree that they could readily be confused, particularly with all the publicity the court case was getting. He said anyone in the music industry would not be confused but conceded that for the general public there could be some amount of confusion. As to the record buying public there wouldn't be any "great" confusion. He said he thought there was a band POPULAR MECHANICS with a close name to POP MECHANIX but he felt that CBS could distinguish them through music.

Mr Russell, the Managing Director of CBS agreed that the two names were very similar if you write them down on a piece of paper. He said however that if you are familiar with the music industry they are totally dissimilar. He also said that one word is "Popular" and the other word is "Pop". The word "Pop" in POP MECHANIX is a generic term. It is not short for "Popular".

Some evidence was given of bands who had similar names. There was a band in Melbourne called "WENDY AND THE ROCKETS" and a band in Perth called "THE ROCKETS". There is another band in New Zealand called "THE ROCKETS". There is a group known as "THE BEAT" and another known as "THE BRITISH BEAT". There are two bands named "JIGSAW" one of which subsequently became known as "THE BRITISH JIGSAW". There were "THE STARS", "THE AUSTRALIAN STARS" and "THE AMERICAN TSARZ".

It is evident from what I have already said that I do not think there is sufficient difference in the use of the word "Pop" as against the word "Popular" to distinguish POP MECHANIX from POPULAR MECHANICS in the way Mr Russell suggested. It seems to me that the names are so similar that the likelihood of deception exists. The evidence of other bands with similar names does not establish any practice in the industry. If anything it indicates attempts to distinguish between groups. For instance "THE BEAT" and "THE BRITISH BEAT", "JIGSAW" and "THE BRITISH JIGSAW" as I have detailed. Although some of the articles have emphasised that the band POP MECHANIX is a New Zealand band it is not advertised under that name, its records are not sold with any specific reference on the recording or the cover to the fact that they are a New Zealand band. Nor does their backdrop or other material appear to distinguish it in this way. If, of course, it had called itself THE NEW ZEALAND POP MECHANIX it may have been easier for the respondents to claim that this was sufficient to avoid deception of the public.

In my opinion the following actions of CBS are likely to mislead and deceive:-

- promoting the band POP MECHANIX under that name and the name POP MX.

- selling records under those names to retailers with a view to their sale in record shops.

- providing film clips and other demonstration tapes for use by television stations; making arrangements for the use and using television broadcasts for the purposes of promoting the band POP MECHANIX under those names.

Although the conduct of the individual respondents in performing live at various venues in Sydney and Canberra may be likely to mislead or deceive, in the sense I have discussed, it is not conduct which of itself comes within the reach of the Act. However, it is clear from the evidence that live performances are as much a part of increasing the popularity of a band and thereby boosting record sales as being involved in promotional work on radio, television or in the press. Such conduct in my view amounts to aiding or abetting CBS to contravene s.52 within the meaning of s.80(1)(f) and being directly or indirectly knowingly concerned in or party to the contravention by CBS of s.52 within the meaning of s.80(1)(h).

In my view the individual respondents have also breached s.52 by virtue of the extended operation that section is given by s.6(3) of the Act. They performed live on a television program and this was conduct engaged in which was likely to mislead or deceive which "took place in a television broadcast" within the meaning of that subsection.

It was also suggested that they had, as individuals, engaged in trade and commerce among the States. I do not think that any of their conduct was "trade or commerce among the States" as contemplated by s.6(2)(a)(ii) of the Act. Therefore the Act does not apply to them as individuals by virtue of that provision.

In the light of these findings I am of the opinion that the applicants are entitled to appropriate injunctive relief. As agreed with Counsel I shall determine the form of that relief after hearing submissions from them.