Kardas v Kalliakoudis

[2008] FCA 1913

FEDERAL COURT OF AUSTRALIA

Kardas v Kalliakoudis [2008] FCA 1913

COSTS – breach of trademark – respondent agrees to permanent injunction but not an account of profits – costs not agreed – whether costs should be paid by respondent – factors to be taken into account

Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194

Champagne View Pty Ltd v Shearwater Resort Management Pty Ltd [2000] VSC 214

Fordyce v Fordham [2006] NSWCA 274

Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FCR 284

Melbourne University Publishing v Williamson [2005] FCA 1910

O’Neill v Mann [2000] FCA 1680

The Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; Ex parte Lai Qin, Re (1997) 186 CLR 622

DIMITRIOS KARDAS v PETER KALLIAKOUDIS and NICK MISSAILIDIS

VID 410 of 2008

FINKELSTEIN J
16 DECEMBER 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 410 of 2008

BETWEEN:

DIMITRIOS KARDAS
Applicant

AND:

PETER KALLIAKOUDIS
First Respondent

NICK MISSAILIDIS
Second Respondent

JUDGE:	FINKELSTEIN J
DATE OF ORDER:	16 DECEMBER 2008
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The applicant have leave to discontinue the proceeding against the second respondent.

2.The second respondent pay the applicant’s costs fixed in the amount of $15,000.

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 eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 410 of 2008

BETWEEN:

DIMITRIOS KARDAS
Applicant

AND:

PETER KALLIAKOUDIS
First Respondent

NICK MISSAILIDIS
Second Respondent

JUDGE:	FINKELSTEIN J
DATE:	16 DECEMBER 2008
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant, Mr Kardas, is the owner of the trademarks “SPACEDANCE MYKONOSXPERIENCE” and “SPACEDANCE MYKONOS EXPERIENCE”.  The marks are registered under the Trade Marks Act 1995 (Cth) in relation to entertainment activities. Mr Kardas uses the marks to promote dance parties, which offer a unique style of modern Greek music, to the Greek community. The respondents are Mr Kardas’ competitors. They promoted three dance parties (held on 24 and 31 May 2008 at the Alluva night club and on 8 June 2008 at the Billboard night club) by reference to the marks. Mr Kardas commenced this action to restrain the respondents’ alleged trademark infringement and to recover damages or an account of profits.

2. On 6 June 2008 I made an interim order restraining the respondents from promoting any dance party by reference to the word “MYKONOSXPERIENCE” (or a similar word).  At that time the first respondent, Mr Kalliakoudis, was represented by a legal adviser but the second respondent, Mr Missailidis, appeared in person. 

3. By agreement of the parties the action was referred to a mediation which took place on 25 June 2008.  At the mediation Mr Kalliakoudis agreed to submit to a permanent injunction restraining him from promoting any dance party by reference to the word “MYKONOSXPERIENCE” (or a similar word).  Accordingly, on 28 July 2008, formal orders were made disposing of the proceeding…