Mambo Graphics Pty Ltd v the Herbal Tea Company Pty Ltd

Mambo Graphics Pty Ltd (the applicant) sought an interlocutory injunction against The Herbal Tea Company Pty Ltd (the respondent) to restrain the alleged infringement of its registered trade mark, "MAMBO" (the trade mark). The applicant contended that the respondent's use of the name "MAMBO" in relation to its herbal tea products was likely to cause confusion and deceive consumers into believing that the products were associated with or endorsed by the applicant, thereby infringing the applicant's exclusive rights under the *Trade Marks Act 1995* (Cth). The application was heard in the Federal Court of Australia.

The primary legal issue before the Court was whether the applicant had established a sufficient likelihood of success on the merits of its trade mark infringement claim to warrant the grant of an interlocutory injunction. This required the Court to assess whether there was a serious question to be tried regarding the alleged infringement, and if so, whether the balance of convenience favoured granting the injunction to preserve the status quo pending a final determination of the proceedings. Specifically, the Court had to consider the degree of similarity between the respective marks, the similarity of the goods or services in relation to which the marks were used, and the likelihood of deception or confusion among the relevant class of consumers.

In its reasoning, the Court applied the well-established principles governing the grant of interlocutory injunctions, including the two-stage test derived from *Australian Broadcasting Corporation v O’Neill*. The Court found that the applicant had demonstrated a serious question to be tried, noting the identical nature of the trade marks and the potential for confusion given the broad scope of the applicant's registered mark, which covered a range of apparel and accessories. However, the Court ultimately concluded that the balance of convenience did not favour the grant of an interlocutory injunction. This was primarily because the respondent had provided evidence of its long-standing use of the "MAMBO" mark in relation to herbal teas, and the applicant had not demonstrated a sufficiently compelling case of actual or likely damage to justify restraining the respondent's business activities at this interlocutory stage. The Court considered that any potential damage to the applicant could be adequately compensated by an award of damages at trial.

The Court therefore dismissed the application for an interlocutory injunction.