Outboard Marine Corporation (Aust) Pty Ltd v John Haines (Aust) Pty Ltd

[1991] FCA 447

IN TEE F E D E m COURT	)
1
QEmm!&m	1
) No. QG 100 of 1991
B-ISTR	y 1

)

1

BETWEEN:

GUTBOARD MARINE CORPORATION fAUST! PTY LTD

Applicant

- and -

JOHN HAINES IAUST) PTY LTD

Respondent

Heerey J.
Brisbane

25 July 1991

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PX TEMPORE REASONS FOR JUDGlEm

that there will be substantial further publication which is

Because of the time constraints, I don't think I can give anything like a comprehensive review of the evidence in this matter. I refuse the application for an interlocutory injunction. The reasons for that decision have been discussed with counsel in the course of argument, but briefly, the considerations which mainly lead me to that course are, first, there has been relevant delay on the part of the applicant after the brochure would have come to its attention some time in early July. In the meantime the respondent has taken substantial steps towards publishing the brochure, which cost a substantial amount of money, and using the brochure to promote the sale of its boats. In one respect it seems clear

too late to stop, viz inserts in a boating magazine which is
in the course of printing and publication.

Secondly, while I should say as little as possible about the ultimate merits of the case, this being an interlocutory application, it has to be noted that this is a case where Mr John Haines, the principal of the respondent company, has been a well known boat builder in Australia for some 20 or 30 years and his name has been used in connection with boats which his company produced. That may have caused some confusion in the minds of some people, as Mr Frankhauser suggests 'in his affidavit, but it's not suggested that such confusion, in itself, would give any right of action to the applicant.

These proceedings have only been brought because of the production of the brochure which, for the first time, uses the word "Haines" in connection with the word "Signature". But the word "Signature" has been used in connection with the marketing of the respondent's boats for a substantial period of time, as has Mr Haines' involvement with the respondent and its boats.

It was suggested that a simple disclaimer should be directed

tomorrow, and it was said this was a simple method not causing	for the period of the Sydney Boat Show, which is to start
great hardship to the respondent. However, that proposal was put in the context of a submission that there should thereafter be a full interlocutory restraint until trial.
I think in all the circumstances I should not impose any such obligation on the respondent, particularly since, although seemingly a simple matter, it is nevertheless putting on to a party at an interlocutory stage an obligation to take some positive steps. As Mr Crooke QC said in argument, it is equally open to the applicant to avail itself of some form of publicity at the Sydney Boat Show which will draw to the public's attention the difference between its boats and the respondent's boats.
I think I should take the opportunity to make some directions which will result in a trial of this matter on the issue of liability as soon as possible. Varying estimates of the length of such a trial were given. I'm inclined to think that four to five days is perhaps somewhat more realistic, and it's said that it could be ready for trial within two months, and I would think perhaps even less than that.
I will dismiss the application for an interlocutory
injunction. I reserve the costs of the application.

I certify that this and the

preceding two (2) pages are a true copy of the Reasons for Judgment o f the Honourable Mr Justice Heerey

Counsel for the Applicant:	Mr A Crowe
Solicitors for the Applicant:	Henderson Trout
Counsel for the Respondent:	Mr G Crooke QC with Mr Morris
Solicitors for the Respondent:	Bennett & Philp