Jemella Australia Pty Ltd v Bouobeid

FEDERAL COURT OF AUSTRALIA

Jemella Australia Pty Ltd v Bouobeid [2009] FCA 1567

INTELLECTUAL PROPERTY – consideration of an ex parte application for an injunction and related orders for infringement of a trade mark

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 - cited

JEMELLA AUSTRALIA PTY LTD (ACN 104 455 138) v MOHAMAD BOUOBEID and JEMELLA GROUP LIMITED

QUD 285 of 2009

GREENWOOD J
18 DECEMBER 2009
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 285 of 2009

BETWEEN:

JEMELLA AUSTRALIA PTY LTD (ACN 104 455 138)
Applicant

AND:

MOHAMAD BOUOBEID
First Respondent

JEMELLA GROUP LIMITED
Second Respondent

JUDGE:	GREENWOOD J
DATE OF ORDER:	18 DECEMBER 2009
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.Orders of the Court will be made in terms of the draft orders as initialled by Justice Greenwood and to be entered in the Registry by the applicant. 

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using Federal Court Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	QUD 285 of 2009

BETWEEN:

JEMELLA AUSTRALIA PTY LTD (ACN 104 455 138)
Applicant

AND:

MOHAMAD BOUOBEID
First Respondent

JEMELLA GROUP LIMITED
Second Respondent

JUDGE:	GREENWOOD J
DATE:	18 DECEMBER 2009
PLACE:	BRISBANE

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application in which the applicant seeks final relief against the first respondent in terms of a permanent injunction restraining the respondent from importing, promoting, distributing, advertising, offering for sale, displaying or otherwise using counterfeit hairstyling products bearing the mark “GHD Hair Styling Iron,” “GHD Styler,” or “GHD” or any other mark which would infringe trade mark number 951664 being a mark bearing the letters GHD registered for the class of articles the subject of these proceedings.  Apart from that order, the applicant seeks delivery up of infringing articles, damages or, alternatively, an account of profits and other related relief.

2. The applicant also seeks interlocutory orders which are the subject of the application this morning. The application has not been served upon the first respondent and, by definition, the applicant is ex parte in terms of the injunction. The applicant seeks an order directed to the Chief Executive Officer of the Australian Customs Service for the purposes of s 137(5) of the Trade Marks Act 1995 (Cth). That section provides that:

   If after 20 working days from the date on which the action was brought, there is not in force at any time an order of the court directed to the Customs CEO preventing the goods from being released, the Customs CEO must release the goods to their designated owner.

3. The proceeding in question was commenced on 24 November 2009 in respect of 10 hairstyling devices which are the subject of a Notice of Seizure to Objector under the Trade Marks Act dated 19 October 2009 which was served upon or issued to the applicant on 23 October…