Lenard's Pty Ltd v Kimart Pty Ltd - [2009] QDC 150

DISTRICT COURT OF QUEENSLAND

CITATION:

Lenard’s Pty Ltd and Anor v Kimart Pty Ltd and Others [2009] QDC 150

PARTIES:

Lenard’s Pty Ltd

(First Plaintiff)

And

The Poultry Shop Leasing (NSW) Pty Ltd

(Second Plaintiff)

v

Kimart Pty Ltd

(First Defendant)

And

Kimart Pty Ltd as Trustee for the M & K Meredith Unit Trust

(Second Defendant)

And

Kim Lorraine Meredith

(Third Defendant)

And

Martin John Meredith

(Fourth Defendant)

FILE NO/S:

421 of 2009

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

11 June 2009

DELIVERED AT:

Brisbane

HEARING DATE:

18 May 2009

JUDGE:

Shanahan DCJ

ORDER:

Application refused. Applicants to pay the Respondents’ costs of this Application on a standard basis.

CATCHWORDS:

COUNSEL:

Mr M T Hutchings for Applicants.

Mr D P de Jersey for Respondents

SOLICITORS:

McIntosh, McPhillany & Co for Applicants.

H W L Ebsworth Lawyers for Respondents.

This is an Application by the defendants to a claim commenced in the District Court, Brisbane to stay the proceedings pursuant to s 20 Service and Execution of Process Act 1992 (Cth).

The claim is based on a Deed of Termination in relation to a failed Franchise Agreement concerning a store which was operated in New South Wales. The applicants argue that New South Wales is the appropriate forum to determine the matter.

The Background

The plaintiffs are the franchisor of a chain of stores which sell chicken products. On 26 November 1999 by a Master Franchise Agreement signed on that date, the plaintiffs granted the first and second defendants the right to operate outlets throughout New South Wales. The third and fourth defendants guaranteed the first and second defendants’ obligations under the Agreement.

On 23 December 2004 the plaintiffs, the first and second defendants and Coolayfin Pty Ltd (“Coolayfin”) entered a Franchise Agreement pursuant to which Coolayfin was entitled to operate a Lenard’s store franchise at Parkes in New South Wales.

Coolayfin subsequently defaulted in its obligations under the Franchise Agreement and the Franchise Agreement was terminated.

On 21 December 2007 the plaintiffs and defendants entered a Deed of Termination pursuant to which the defendants agreed to indemnify the plaintiffs in respect of loss suffered by the plaintiffs as a result of Coolayfin breaching the Franchise Agreement.

On 13 February 2009 the plaintiffs commenced a claim against the defendants in relation to moneys payable under the Deed of Termination or, alternatively, as damages for breach of contract.

The Deed of Termination

Relevant to this Application, the Deed of Termination provided at Clause 21:

“This document is governed by the law of Queensland. The parties submit to the exclusive jurisdiction of its courts. The parties will not object to the exclusive jurisdiction of its courts. The parties will not object to the exercise of jurisdiction by those courts either for forum non conveniens or on any other basis. The parties will not take or continue legal proceedings anywhere else”.

The Application

The Application was originally framed that the defendants sought an order dismissing the claim for…

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.

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Details

Case: [2009] QDC 150
Decision Date: 11 June 2009

CaseChat Overview and Summary

Lenard's Pty Ltd brought an application against Kimart Pty Ltd in the Supreme Court of Queensland, seeking an injunction to prevent the respondent from using a trade name that was allegedly too similar to its own. The dispute centred around the distinctiveness and uniqueness of trade names in the context of business operations within the same industry. The court was tasked with determining whether the trade name used by Kimart Pty Ltd was confusingly similar to that of Lenard's Pty Ltd, thereby infringing upon the latter's intellectual property rights.

The primary legal issue revolved around whether Kimart Pty Ltd's use of a trade name that was similar to Lenard's Pty Ltd's constituted an infringement of trademark rights under the Trade Marks Act 1995 (Cth). The court had to consider factors such as the similarity of the names, the similarity of the goods and services provided under each trade name, and the likelihood of confusion among consumers. Additionally, the court assessed the evidence presented regarding the reputation of Lenard's Pty Ltd's trade name and the potential for damage to its business reputation due to the similarity.

The court found that while the trade names were similar, there was insufficient evidence to establish that the similarity was likely to cause confusion among consumers or that it would damage the reputation of Lenard's Pty Ltd. The judge noted that the markets and customer bases of the two companies were distinct, and that consumers were unlikely to be confused by the similarity of the names. As a result, the application for an injunction was refused, and the applicants were ordered to pay the respondents' costs of the application on a standard basis. This decision underscores the importance of demonstrating actual or likely consumer confusion and reputational harm when seeking to enforce trademark rights.

Orders

Orders of the court

Application refused. Applicants to pay the Respondents’ costs of this Application on a standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Lenard’s Pty Ltd and Anor v Kimart Pty Ltd and Others [2009] QDC 150
PARTIES:	Lenard’s Pty Ltd (First Plaintiff) And The Poultry Shop Leasing (NSW) Pty Ltd (Second Plaintiff) v Kimart Pty Ltd (First Defendant) And Kimart Pty Ltd as Trustee for the M & K Meredith Unit Trust (Second Defendant) And Kim Lorraine Meredith (Third Defendant) And Martin John Meredith (Fourth Defendant)
FILE NO/S:	421 of 2009
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court Brisbane
DELIVERED ON:	11 June 2009
DELIVERED AT:	Brisbane
HEARING DATE:	18 May 2009
JUDGE:	Shanahan DCJ
ORDER:	Application refused. Applicants to pay the Respondents’ costs of this Application on a standard basis.
CATCHWORDS:
COUNSEL:	Mr M T Hutchings for Applicants. Mr D P de Jersey for Respondents
SOLICITORS:	McIntosh, McPhillany & Co for Applicants. H W L Ebsworth Lawyers for Respondents.