Nokia Corporation v Yu - [2008] FCA 1087

FEDERAL COURT OF AUSTRALIA
Nokia Corporation v Yu [2008] FCA 1087
Federal Court Rules
Trade Marks Act 1995 (Cth)
British American Tobacco Australasia Ltd v Sabar [2007] FCA 1255
Chanel Ltd v Kim (2007) 75 IPR 51
Sony Computer Entertainment Australia Pty Ltd v Angrainni (2000) 48 IPR 49
NOKIA CORPORATION v HENRY YU
VID 336 OF 2008
GORDON J
6 JUNE 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 336 OF 2008

BETWEEN:

NOKIA CORPORATION
Applicant

AND:

HENRY YU
Respondent

JUDGE:

GORDON J

DATE OF ORDER:

6 JUNE 2008

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The requirement for personal service on the Respondent be dispensed with.
2.Service on the Respondent of any document in this proceeding be effected by sending a copy of the document by pre-paid post, addressed to the Respondent at Unit 2, Number 24, Northumberland Road, Auburn, NSW.
3.Service on the Respondent of the:
a)Application and Statement of Claim filed 13 May 2008 be taken to have been effected on 28 May 2008 by leaving a copy of the same in the letterbox at Unit 2, Number 24, Northumberland Road, Auburn, NSW;
b)Notice of Motion dated 2 June 2008 (“the Notice of Motion”), together with the affidavits of Luke Andrew Merrick sworn 26 May 2008, Themis Papas sworn 30 May 2008 and Kenneth James Taylor sworn 2 June 2008, be taken to have been effected on 5 June 2008 by sending a copy of the same by pre-paid express post addressed to the Respondent at Unit 2, Number 24, Northumberland Road, Auburn, NSW.

4.The Chief Executive Officer of The Australian Customs Service (“Customs”) be restrained until the trial of this proceeding or further order from releasing any of the goods the subject of and referred to in the Notice of Seizure to Objector dated 9 April 2008, and sent to the Applicant by Customs under cover of letter marked DGR 200801302 / 2 kk N08/00723.
5.By 4:00pm on 27 June 2008, the Respondent file and serve any defence.
6.The Respondent pay the Applicant’s costs of and incidental to the Notice of Motion.
7.Otherwise costs reserved.
8.The matter be listed for directions on 18 July 2008 at 9:30am.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 336 OF 2008

BETWEEN:

NOKIA CORPORATION
Applicant

AND:

HENRY YU
Respondent

JUDGE:

GORDON J

DATE:

6 JUNE 2008

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

The applicant, Nokia Corporation (“Nokia”), is the owner of registered trade mark numbered 458364 for Nokia in Class 9, registered trade mark 490781 for Nokia and device in Class 9, registered trade mark number 808735 for Nokia in Class 16 and registered trade mark number 867057 for Nokia in Classes 9, 18, 25, 38, 41 and 42 (“the Nokia Trade Marks”).
On 13 May 2008, Nokia filed an application and statement of claim in the Federal Court identifying the Nokia Trade Marks and that…

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: [2008] FCA 1087
Decision Date: 6 June 2008

CaseChat Overview and Summary

Nokia Corporation sought an order in the Federal Court of Australia to restrain the respondent, Yu, from dealing with certain telecommunications equipment that had been seized by the Australian Customs Service. The application was made on an ex parte basis, and the court was asked to dispense with the requirement for personal service on the respondent and to allow service by post. The court was also asked to restrain the Customs from releasing the seized goods to the respondent until the trial of the proceeding. The court heard the application and considered the submissions made by Nokia’s counsel and the affidavits of various witnesses. The court found that there were reasonable grounds to believe that the respondent was in possession of the telecommunications equipment that was subject to the seizure and that there was a risk that the respondent would deal with the equipment in a way that would defeat the purpose of the seizure. The court was satisfied that the respondent was not likely to be prejudiced by the order for service by post and that it was in the interests of justice to make the order. The court made the orders as sought by Nokia, including an order that the respondent file and serve any defence by a specified date and an order that the respondent pay Nokia’s costs of and incidental to the application. The matter was listed for directions on a specified date.

Orders

Orders of the court

1. The requirement for personal service on the Respondent be dispensed with.

2. Service on the Respondent of any document in this proceeding be effected by sending a copy of the document by pre-paid post, addressed to the Respondent at Unit 2, Number 24, Northumberland Road, Auburn, NSW.

3. Service on the Respondent of the:

a) Application and Statement of Claim filed 13 May 2008 be taken to have been effected on 28 May 2008 by leaving a copy of the same in the letterbox at Unit 2, Number 24, Northumberland Road, Auburn, NSW;

b) Notice of Motion dated 2 June 2008 (“the Notice of Motion”), together with the affidavits of Luke Andrew Merrick sworn 26 May 2008, Themis Papas sworn 30 May 2008 and Kenneth James Taylor sworn 2 June 2008, be taken to have been effected on 5 June 2008 by sending a copy of the same by pre-paid express post addressed to the Respondent at Unit 2, Number 24, Northumberland Road, Auburn, NSW.

4. The Chief Executive Officer of The Australian Customs Service (“Customs”) be restrained until the trial of this proceeding or further order from releasing any of the goods the subject of and referred to in the Notice of Seizure to Objector dated 9 April 2008, and sent to the Applicant by Customs under cover of letter marked DGR 200801302 / 2 kk N08/00723.

5. By 4:00pm on 27 June 2008, the Respondent file and serve any defence.

6. The Respondent pay the Applicant’s costs of and incidental to the Notice of Motion.

7. Otherwise costs reserved.

8. The matter be listed for directions on 18 July 2008 at 9:30am.

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

GORDON J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: GORDON J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 336 OF 2008

JUDGE:	GORDON J
DATE OF ORDER:	6 JUNE 2008
WHERE MADE:	MELBOURNE

JUDGE:	GORDON J
DATE:	6 JUNE 2008
PLACE:	MELBOURNE