Make Wine Pty Ltd v Modern Ancient Brands Pty Ltd

Make Wine Pty Ltd (the applicant) sought an interlocutory injunction against Modern Ancient Brands Pty Ltd (the respondent) to restrain the respondent from using the trademark "Make Wine" in relation to wine products. The applicant argued that the respondent's use of the mark infringed its registered trademark and constituted misleading and deceptive conduct under the *Australian Consumer Law*. The application was heard in the Federal Court of Australia.

The primary legal issues before the Court were whether the respondent's use of the "Make Wine" trademark was likely to cause confusion among consumers, thereby infringing the applicant's registered trademark, and whether such use amounted to misleading or deceptive conduct. The Court was required to assess the degree of similarity between the marks, the nature of the goods in question, and the likely perception of the relevant class of purchasers.

Justice Irgang considered the evidence presented by both parties regarding the distinctiveness of the applicant's mark and the extent of the respondent's use. The Court applied the principles established in trademark infringement cases, focusing on the likelihood of deception or confusion. It also considered the provisions of the *Australian Consumer Law* concerning misleading and deceptive conduct, assessing whether the respondent's actions were likely to mislead or deceive consumers as to the origin or association of the wine products. The Court found that the applicant had established a strong prima facie case for infringement and misleading and deceptive conduct, and that the balance of convenience favoured granting an interlocutory injunction.

The Court ordered that the respondent be restrained from using the trademark "Make Wine" in relation to wine products pending the final determination of the proceedings.