Playgro Pty Ltd v Playgo Art & Craft Manufactory Ltd (No 2)

Playgro Pty Ltd sought a declaration and injunction against Playgo Art & Craft Manufactory Ltd for trade mark infringement. The applicant alleged that the respondent’s trade mark ‘PLAYGO’ was deceptively similar to its trade mark ‘PLAYGRO’ and that the respondent’s use of the word ‘PLAYGO’ in small print on packaging also amounted to infringement. The Court was required to determine whether the applicant’s case extended to the word ‘PLAYGO’ in addition to the Playgo Device Mark. The Court considered that the applicant had confined its argument on infringement to the Playgo Device Mark during the trial and that the reasons for judgment had articulated the issues to be determined by reference to the Playgo Device Mark. However, following publication of the reasons, the applicant sought to extend the declaration and orders to cover the use of the word ‘PLAYGO’ in small print on packaging. The Court allowed the applicant to reopen to make submissions on this issue, as it arose from the pleadings and did not affect the evidence. The Court found that the word ‘PLAYGO’ in small print on packaging, when considered in conjunction with the Playgo Device Mark, was deceptively similar to the applicant’s trade marks and that the use of the word ‘PLAYGO’ amounted to infringement. The Court granted the applicant a declaration and injunction against the respondent’s use of the Playgo Device Mark and the word ‘PLAYGO’ in small print on packaging. The Court also made orders as to costs and further directions.