Nokia Corporation v Millaras (No 3)

[2010] FCA 1396

FEDERAL COURT OF AUSTRALIA

Nokia Corporation v Millaras (No 3) [2010] FCA 1396

Citation:		Nokia Corporation v Millaras (No 3) [2010] FCA 1396
Parties:		NOKIA CORPORATION v RENAE MILLARAS
File number(s):		NSD 1352 of 2010
Judge:		JAGOT J
Date of judgment:		8 December 2010
Catchwords:		TRADE MARKS – application for default judgment.
Legislation:		Federal Court Rules
Date of hearing:	8 December 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	9
Counsel for the Applicant:	Ms G Rubagotti
Solicitor for the Applicant:	Baker & McKenzie Solicitors
Counsel for the Respondent:	The Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1352 of 2010

BETWEEN:	NOKIA CORPORATION Applicant
AND:	RENAE MILLARAS Respondent

JUDGE:	JAGOT J
DATE OF ORDER:	8 DECEMBER 2010
WHERE MADE:	SYDNEY

In these Orders:

The NOKIA Trade Marks means Trade mark no. 867057 for “NOKIA” in classes 9, 18, 25, 38, 41 and 42; and Trade mark no. 458364 for “NOKIA” in class 9.

The Seized Goods means 15 mobile telephones bearing the mark NOKIA imported into Australia by the respondent on or about 13 September 2010 and seized by the Chief Executive Officer of Australian Customs has seized the Seized Goods pursuant to section 133 of the Trade Marks Act 1995 (Cth) under notice of seizure number 2010/042036.

THE COURT

1.Declares that the respondent has infringed each of the NOKIA Trade Marks, by importing into Australia the Seized Goods.

2.   Orders that:

(a)default judgment be entered against the respondent pursuant to Order 35A of the Federal Court Rules.

(b)pursuant to section 137(3)(b) of the Trade Marks Act 1995 (Cth), the Seized Goods be forfeited to the Commonwealth for disposal at the direction of the Chief Executive Officer of Australian Customs.

(c)the respondent by herself, her servants, agents or otherwise, be restrained from:

(i)          manufacturing;

(ii)         importing;

(iii)        causing or procuring the manufacture or importation of;

(iv)        selling or offering or exposing for sale;

(v)         advertising or promoting; or

(vi)        otherwise providing

goods bearing:

(A)one or more of the NOKIA Trade Marks; or

(B)any mark which is substantially identical with or deceptively similar to any one or more of the NOKIA Trade Marks

without the prior written consent of the applicant ("Unauthorised Goods").

(d)the respondent by herself, her servants, agents or otherwise, be restricted from authorising, aiding, abetting, counselling or procuring any other person or entity to engage in conduct prohibited by the order in paragraph 2(c) above.

(g)the respondent pay the applicant a lump sum of $10,771 in respect of the applicant's costs of these proceedings and of this notice of motion.

(h)the respondent pay the applicant interest on the sum in order (g) above pursuant to Order 35, Rule 8 of the Federal Court Rules.

(i)the applicant to serve these Orders on the respondent by sending an email attaching a copy of the Orders as entered to the email addresses the subject or Order 3 of the Court made on 25 October 2010.

(j)these proceedings be otherwise dismissed.

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 Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1352 of 2010

BETWEEN:	NOKIA CORPORATION Applicant
AND:	RENAE MILLARAS Respondent

JUDGE:	JAGOT J
DATE:	8 DECEMBER 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, Nokia Corporation, by notice of motion filed 2 December 2010 seeks a declaration and orders against the respondent, Renae Millaras.  The basis of the notice of motion is judgment on default in accordance with O 35A of the Federal Court Rules. 

2. When the matter was called this morning, Ms Millaras did not appear.  The matter was called outside the Court and Ms Millaras again did not appear.  The applicant proceeded with the notice of motion. 

3. The notice of motion is supported by the third affidavit of Luba Poukchanski, a solicitor employed by the solicitor for the applicant, sworn 2 December 2010.  Ms Poukchanski’s affidavit records that the respondent, Ms Millaras has not taken any step in the proceedings.  Ms Millaras:

   ·has not entered an appearance in circumstances where the time for so doing has expired; 

   ·did not attend the interlocutory hearing on 4 November 2010 despite having been notified by the applicant’s legal representative of that hearing (that hearing resulted in the making of interlocutory orders as sought by the applicant: see Nokia Corporation v Millaras (No 2) [2010] FCA 1217);

   ·did not attend the directions hearing on 18 November 2010, again, despite being notified of that hearing by the applicant’s legal representative; and

   ·has not served a pleading defending the applicant’s statement of claim which was filed on 24 November 2010.  In accordance with orders which I made on 18 November 2010 the respondent should have filed and served her defence by 2 December 2010. 

4. The following provisions of O 35A r 2(2) of the Federal Court Rules have been satisfied in this case:

   … a respondent is in default if the respondent has not satisfied the applicant's claim and:

   (a)the time for the respondent to enter an appearance has expired and the respondent has failed to enter an appearance; or

   (b)the time for the respondent to file a defence has expired and the respondent has failed to file a defence; or

   (c)       the respondent fails to attend a directions hearing; or

   (d)the respondent fails to comply with an order of the Court in the proceeding; or

   …
   (h)      the respondent fails to defend the proceeding with due diligence.

5. Under O 35A r 3(2) of the Federal Court Rules:

   If a respondent is in default, the Court may:
   …

   (c)if the proceeding was commenced by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings – give judgment against the respondent for the relief that:

   (i)        the applicant appears entitled to on the statement of claim; and

   (ii)       the Court is satisfied it has power to grant; or

   (d)      give judgment or make any other order against the respondent…

6. In this case, as the short submissions filed on behalf of the applicant disclose, there is power in the circumstances for judgment to be given in favour of the applicant and against the respondent for the relief to which the applicant appears entitled on the face of the statement of claim.  I am satisfied that I have power to grant that relief and there is no discretionary reason why such relief should not be granted particularly having regard to the prima facie case for interlocutory relief which the applicant made out and as recorded in Nokia Corporation v Millaras (No 2), the evidence otherwise remaining the same since that time given the defaults by the respondent.

7. In these circumstances, I am satisfied that I should make orders in accordance with the short minutes of order which have been filed today, subject only to the deletion of paragraphs 2(e) and 2(f). 

8. As part of those orders there is a lump sum costs order in paragraph 2(g).  That costs order is supported by Ms Poukchanski’s affidavit, in particular paragraphs 7 through 11.  In the circumstances, I accept the submissions for the applicant that I should make this order in accordance with O 62 r 4(2)(c) of the Federal Court Rules.  The applicant’s actual costs are far larger than the fixed costs claimed.  It is inappropriate in the circumstances of this case to leave the applicant in a position where it must otherwise obtain the respondent’s agreement to costs or go to the expense of taxing a bill of costs.  For this reason I am satisfied that the lump sum costs order in the sum of $10,771 should be made. 

9. Therefore, I make the declaration in paragraph 1 and the orders in paragraphs 2(a), (b), (c), (d), (g), (h), (i) and (j) of the short minutes of order.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

Associate:

Dated:       13 December 2010