CaseChat Overview and Summary
Peter Pan Electrics Pty Ltd (applicant) has brought an application for interlocutory relief against Newton Grace Pty Ltd (respondent) pending the final hearing of the proceeding. The applicant complains that the respondent is supplying and advertising its product, Harmony, in a get-up substantially identical or deceptively similar to the get-up of the applicant's product, Duet. The applicant also alleges that the respondent is passing off its product as the applicant's product, infringing the applicant's copyright in certain printed matter that accompanies or is attached to the applicant's product, and infringing the applicant's petty patent for an invention entitled 'mattress cover'. The respondent proffers undertakings to the Court that it shall not, pending the final determination of this proceeding, manufacture or cause to be manufactured, import into Australia, distribute, supply, advertise, offer for sale or sell mattress covers in a get-up or packaging substantially identical with, or misleadingly or deceptively similar to, the get-up or packaging of the applicant's mattress covers; advertise, offer for sale or sell mattress covers under or in connection with the words 'another first from Linda'; falsely represent by any means that the respondent's mattress covers are of the standard or quality of the applicant's mattress covers or have the performance characteristics and benefits of the applicant's mattress covers; represent in the course of manufacture, importation, distribution, supply or sale of mattress covers or in connection with the promotion of the supply or use of mattress covers, that the respondent's mattress covers are the applicant's mattress covers or have the sponsorship or approval of the applicant, or that the respondent is affiliated with, or has the sponsorship or approval of the applicant; infringe the copyright in any or all of the literary and artistic works referred to in paragraph 19 of the Statement of Claim herein, and in particular, make or import into Australia or offer for sale, expose for sale or sell mattress covers in conjunction with the packaging inserts, warranty leaflets or labels referred to in the particulars of paragraph 20 of the Statement of Claim herein. The applicant is content to accept these undertakings, but says that they do not go far enough to ensure full protection to it. The applicant additionally seeks injunctions to restrain the respondent from engaging in the course of the business of manufacture, importation, distribution, supply or sale of mattress covers in conduct that is misleading or deceptive or is likely to mislead or deceive; and from passing off or enabling the passing off of respondent's mattress covers as and for the applicant's mattress covers. The respondent opposes the grant of those injunctions on the grounds that they are too wide and unduly oppressive in the carrying on of its business. In the alternative, counsel for the applicant submitted that, if I concluded that the two additional injunctions should not be granted, then it would probably be sufficient protection to the applicant if the first undertaking that I mentioned ((a) above) was extended to specifically restrain the use by the respondent of the name 'Harmony' or any other name substantially identical thereto, in connection with the get-up or packaging of the respondent's rival product. Counsel for the respondent opposed this alternative course and stated that the respondent did not intend to continue using the name 'Harmony' in association with the product in suit. Notwithstanding this statement by counsel, in my opinion the undertakings proffered by the respondent adequately protect the applicant pending the final determination of this proceeding. It is therefore unnecessary to make the additional orders sought by the applicant. The applicant cannot complain about the respondent's use of the word 'Harmony' in association with its product if the respondent's conduct does not otherwise impair the applicant's rights or contravene the Trade Practices Act or other law. This leaves the patent question. On 5 December 1984 the applicant's application for a petty patent was filed. After investigation by the Patent Office, which included raising two items of prior art, the petty patent was granted on 21 March 1985. The term of the petty patent is for 12 months commencing on 21 March 1985. The title of the invention is 'Mattress Cover' and the specification for the Invention is described in the following statement: 'The present invention relates to mattress covers and relates specifically to novel heated mattress covers. The use of electric blankets has achieved widespread acceptance by the community over many years. The blankets usually consist of a wire or wires which extend in loops between layers of a blanket material. The wires can be heated by AC or DC power and usually include a three-position, or variable heater control. To avoid overheating caused by rucking or puckering of the electric blanket the product includes tapes to secure the blanket to a mattress to ensure rigidity and maintenance of flatness. It has been found that the overheating of electric blankets is, in many cases, attributable to the tapes not being adequately secured which allows the blanket to 'bunch up'. As electric blankets should always remain flat it is preferred that they always remain on the bed. Many people remove electric blankets from their beds during summer and store them. Incorrect storage can also cause distortion of the electric blanket which may result in overheating. Many people also have a fear of electric blankets as they can feel the heating wires through their bodily contact therewith. The wires can be quite uncomfortable and may leave marks or indentations on the skin where heavy contact is made. Furthermore the use of woollen mattress protectors have also become popular, especially with elderly people and general sufferers of arthritic and rheumatic complaints. These protectors usually comprise a coarse base material with woollen fibres stitched thereto. In use, the protector is placed in direct contact with the top of the mattress with the base material being in contact therewith. The inter-positloning of the protector between mattress and person, via a sheet, together with the insulation and sweat-absorbent qualities of wool will provide a very comfortable nights sleep. Woollen mattress protectors enable the user to retain warmth but do not generate heat of their own accord. External heat to bedding can only be generated by an electric blanket. It is an object of the present invention to provide the warmth of an electric blanket together with the insulative and therapeutic effects of a pure wool mattress protector. A further object of the invention is to reduce the chances of an electric blanket from being positioned in a non-flat orientation when on a bed. A still further object is to provide an electric blanket where the heating wires cannot be felt by a person lying thereon. An additional object of the invention is to provide an electric blanket which does not require removal from the bed because of seasonal changes. With these objects in view the invention provides a mattress cover, said cover including a base material to which is stitched a woollen yarn to form a carpet-like blanket, an electric blanket including opposed facing layers of joined material with at least one heating wire located between said layers, at least the periphery or a part of the periphery of said electric blanket being secured to said base material to form a dual layer mattress cover with said electric blanket in close face abutment with said base material.' There follows a statement of what is described as a practical embodiment of the invention with reference to accompanying drawings which I need not mention. The claim defining the invention is expressed as follows: 'A mattress cover
