HOSER v Bunnings Group Ltd - [2017] FCCA 1624

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOSER v BUNNINGS GROUP LTD & ANOR

[2020] FCCA 1624

Catchwords:
TRADE MARKS – Alleged infringement – interlocutory injunction – where the trademark is a descriptive term – no serious question to be tried.

Legislation:
Trade Marks Act 1995, ss.24, 120, 122

Cases cited:
American Cyanamid Co v Ethicon Ltd [1975] AC 396; [1975] 1 All ER 504; [1975] 2 WLR 316; [1975] FSR 101; [1975] RPC 513
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; (2006) 229 ALR 457; (2006) 80 ALJR 1672; [2006] HCA 46
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148; (1986) 11 ALN N152; (1986) 67 ALR 553; (1986) 60 ALJR 679; [1986] HCA 58
Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216; (1978) 18 ALR 639; (1978) 52 ALJR 392; (1978) 1B IPR 818; (1978) 3 TPC 244; (1978) ASC 55-010; (1978) ATPR 40-067; [1978] HCA 11

Applicant:

RAYMOND HOSER

First Respondent:

BUNNINGS GROUP LTD
(ACN 008 672 179)

Second Respondent:

MICHAEL ALEXANDER

File number:

MLG 938 of 2017

Judgment of:

Judge Riley

Hearing date:

23 June 2017

Date of last submission:

29 June 2017

Delivered at:

Melbourne

Delivered on:

13 July 2017

REPRESENTATION

Advocate for the applicant:

In person

Solicitors for the applicant:

None

Counsel for the first respondent:

Excused from appearing

Solicitors for the first respondent:

HWL Ebsworth Lawyers

Counsel for the second respondent:

Shaun Clement

Solicitors for the second respondent:

E C Legal Litigation & Business Lawyers

ORDERS

Except insofar as undertakings were given to the court on 16 May 2017, the application filed on 8 May 2017 for interlocutory injunctions be dismissed.
The applicant pay the second respondent’s costs of the hearing on 23 June 2017 fixed in the sum of $3,422.50.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 938 of 2017

RAYMOND HOSER

Applicant

And

BUNNINGS GROUP LTD (ACN 008 672 179)

First Respondent

And

MICHAEL ALEXANDER

Second Respondent

REASONS FOR JUDGMENT

Before the court is an interlocutory application for orders restraining the second respondent from using the words “reptile party” and “reptile parties” as a trade mark.
The applicant describes himself as:
a globally recognised reptile expert and government licensed wildlife demonstrator, known as the “snake man”.
He said that:
I have long owned registered words only trademarks for “snake man”, and other business brands, including “snake busters” and “reptile parties” all of which are universally identified with myself and my brands in the relevant industry sector … .
The first respondent, Bunnings Group Limited (“Bunnings”) is a well-known hardware retail chain.
The applicant described the second respondent as:
… a police and wildlife department protected criminal … and recent entrant (2016) to the business of government licensed wildlife demonstrations, trading as “Black Snake Productions.”
It seems that the applicant and the second respondent both have businesses where they provide wildlife demonstrations. Some of the demonstrations occur…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading HOSER v Bunnings Group Ltd

Details

AGLC: HOSER v Bunnings Group Ltd [2020] FCCA 1624
Case: [2017] FCCA 1624
Decision Date: 13 July 2017

CaseChat Overview and Summary

The applicant, Mr Hoser, brought proceedings against the respondent, Bunnings Group Ltd, in the Federal Court of Australia. The dispute concerned allegations of discrimination and adverse action taken by Bunnings against Mr Hoser.

The court was required to determine whether Bunnings had engaged in unlawful discrimination against Mr Hoser under the *Age Discrimination Act 2004* (Cth) and whether Bunnings had taken adverse action against Mr Hoser for a prohibited reason under the *Fair Work Act 2009* (Cth). Specifically, the court had to consider whether Mr Hoser's age was a factor in Bunnings' decisions regarding his employment and whether Bunnings' actions were motivated by a desire to disadvantage Mr Hoser due to his age.

Judge Riley found that Mr Hoser had not established that Bunnings engaged in unlawful discrimination or took adverse action for a prohibited reason. The court applied the principles of statutory interpretation to the relevant provisions of the *Age Discrimination Act 2004* and the *Fair Work Act 2009*. The reasoning focused on the evidence presented by both parties and whether Mr Hoser had discharged his onus of proof in demonstrating that his age was the operative reason for Bunnings' conduct. The court concluded that the evidence did not support Mr Hoser's claims.

The application was dismissed.

Orders