Pauls Merchants Pty Ltd v Nebco Pty Ltd

[1985] FCA 434

m: NEBCC' FTP LIMITED

Pefipordent

2 .

l.b! c s r ry ln? on or s d v e r t i s l n g the s?.iJ r e t a i l

hardware st9r.p busine-s ac I n I e s t f i e l d ShOpFlnq

$:entre, North Pocks in t he said S ta te lund?r any

name which comprises or Includes rile word

" P a u l ' S" ; and

NEECO ?TY LIMITED -

Pezpondent

.

3 .

In relation to the balance of convenience. ~t :?ems

t c me c l e a r that to allcx the respnnrclent to tra?? Ilnder t:??

name "Fauls" is likely to occaslon prcblems f o r the qplicsnt.

both in th? continued condbxt of its Susmess in other

locations and in the disposal 2f those busmesses as currently

pro~ected. It is axiomatic that if members of the publir

assoclate the respondent's premises with the busmess of the

applicant and find themselves dissatisfied with the services

offered. or the range of qoods stocked, by the respondent,

this 1 s llkely CO damage the qoodwill of the spplicant, in

relatlon to its other stores. Furthermore, the sale cf zhe

applicant's other stores, at least under the esistln9 names,

is likely to be prejudiced bg t h e use by the respondent of the

name "Pluls" in a manner likely to cause the confusion which I

t h 1 P . K exists in this , : A Z E .

4 .

The n n l g prFju.dire that Plr Gni:for,au has identifieci

I?. i11z .il-!bmiszlon 1s the Inconvenience 2nd ccnfas;?n if ?h+

store 1 s now compelled to use a name other than "P3uls" apd.

belng successful at the flnal hearing, is then free t9 rev?rt

to "Pauls". I suppose it is posslble that there would be some

mconvenlence if that chain of events occut's, but it seems to

me that any inconvenience thus suffered by the respondent il

very much of lts own making, and indeed would be a product

only of an eventual decision to revert to the name "Paluls" lf

it was successful at the final hearlnq. There iz nu reason in

the evidence to belleve that this would be J. commerclallg

4ttrartlve proposltion except in the r ~ a y of d e s l r m ~ to profit

by confuelon with the applicant's name.

5.