PDP Capital Pty Ltd v Grasshopper Ventures Pty Ltd (No 2)

PDP Capital Pty Ltd sought to appeal a decision from the Federal Court in which the primary judge determined that Grasshopper Ventures Pty Ltd had not infringed PDP's WS Device Marks. The appeal included several grounds, such as challenging the primary judge's conclusion that Grasshopper had not infringed the WS Device Marks and the removal of certain goods from the register in relation to the Wicked Tail Mark. The court also considered Grasshopper's cross-appeal and notice of contention, which addressed various other legal issues. The Full Court dismissed grounds 1 and 2 of the appeal, upholding the primary judge's conclusion that Grasshopper had not infringed the WS Device Marks. The court found that ground 4 of the appeal succeeded, leading to the removal of specific goods from the register in relation to the Wicked Tail Mark. The Full Court found that grounds 3, 5, and 6 of the appeal, as well as grounds 3 and 4 of the notice of contention, failed.

The court considered the costs of the appeal and cross-appeal, acknowledging that PDP substantially failed in their appeal and that Grasshopper had substantial, but not complete, success. The Full Court determined that it was appropriate to order PDP to pay 90% of Grasshopper's costs, subject to any submissions from the parties. PDP filed submissions arguing that the costs should be reduced to 75%, considering the complexity and time consumed by Grasshopper's arguments. PDP contended that Grasshopper's defences and cross-claims were unnecessary and costly to address. The court ultimately decided to dismiss PDP's application to vary the costs order and directed the Registrar to assess the lump sum for costs payable. The appellants were to pay the determined sum within 28 days from the date of the Registrar's order.