Poolrite Equipment Pty Ltd v Halhapin Pty Ltd

[1985] FCA 503

(NOTE: This judgment relates to its own facts and is not of

sufficient general interest to justify circulation)

IN THE FEDERAL COURT O F AUSTRALIA )

PUEENSLAND DISTRICT REGISTRY	)	QLD G94 of 1985
GENEFAL DIVISION	)

BETWEEN :

POOLRITE EOUIPMENT PTY LTD

Applicant

AND :

HALHAPIM PT7 LTD (TPJIDING UNDER THE REGISTERED

BUSINESS NAME POOL FILTRATION AND EOUIPMENT)

Respondent

DATZ OF FEARING: 20 September 1 9 8 5

DATE JUDGMENT DELZVEREIj	:	20	September	1 9 8 5
COUNSEL :

. for the applicant	Mr P. fiorrison instructed 5y
Thpnne and Macartney
. for the respondent	Mr D.R. Boughan instructed by
Hicks and Bennett ;', I .

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,-

D.T. O'ERIEN

ASSOCIATE TO PINCUTS J .

20 September 1985

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IN THE FEDERAL COURT OF AUSTRALIA	1
1 QLD G94 of 1985
PUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	)

BETWEEW :

POOLRITE EQUIPMENT PTY LTD

Applicant

m:

HALHAPIN PTY LTD (TR-ADIWG UNDER THE REGISTERED

BUSINESS 3JAJ-E POOL FILTPATION	AND EOUIPMENT)
Respondent

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MINUTES OF ORDER	:	L -
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JUDGE MAKING ORDER:	FINCUS J.
DATE OF ORDER:	20 SEPTEMBEP. 1985
WERE PLADE:	BRISEANE
THE COURT ORDERS THAT:

1. Until furzher order the respondent be

restrzined from using or displaying a

banner pcomlnently shown in the lower two

photographs in Exhibit C to the aifidavlt

of Pecer Alan Rabbidge filed herem whlle

such barmer continues to display the

"Foolrite"	and	"Fearl"	logos deplcted
thereon.

2. The costz of today's application be costs in the proceedings.

m:	Settlement and entry of orders is dealt with in Order	36
of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRACTA	1
PUEENSLBND DISTRICT REGISTRY	) QLD G94 of 1985

DIVISION GENERAL )

BETNEEN:

POOLRITE EOUIPIENT PTY LTD

Applicant

AND:

HALHAPIN PTY LTD (TRADING UNDER THE REGISTERED

BUSINESS NAME POOL FILTRATION AND EOUIPMENT)

Respondent

PINCUS J. 20 SEPTEMBER 1985

EX TEMPORE REASONS FOR JUEGMENT

: '

Tnls is an application for an interim injunctlon to

restrain allegedly misleading conduct. The application was made

on very short notice but the responeent has been represented by

counsel and presented some evidence. Although, as It seems to

me, the respondent was disadvantaged by the very short notlce, it

was certainly in a becter position chan it would have occupied f

had it had no notice of the making of the applicatlon. Mi

Ramsay, a witness called for the respondent, has explained, I

think adequately, the general nature of the facts grounding the

defence which would be advanced If the matter T?ere fully trled.

2.

About the basic facts, there seems to be little dispute. I

The respondent used be a distributor for the applicant and used

distribute equipment which had a representation of the word

"Poolrite" in accordance with a particular design. During the

period of the distributorshlp the respondent also used another

logo which represented the word "Pearl" under a similar design, that is, the word "Pearl" was represented in such a way that it

looked simllar to "Poolrlte". That was the subject of some

correspondence between the parties which was tendered, and as a

result of which the respondent agreed to alter the "Pearl" logo;

It was to be altered in a way which is proved before me. The

alteration involved not only a change in the style of the

letterlng, but also a change i n the colours used, in that new

logo was to have a dark word on a light background and not, as

previously, a light word on a dark background. Mr Boughen for

the respondenr: says, accurately, that the existence of the agreement does nor: establlsh that the recent use of the old logo,

to be mentioned, was misleading.

Nevertheless, it seems to me true to say that it

misleading and unnecessarily so. In saying "unnecessarllg so', I

do not suggest for one moment that it was done dishonestly, but

in fact the recently displayed logo "Pearl" looks very similar to

the appllcant' S logo "Poolrite". The sole reason that, as the

applicant complains, there has been a reversion to the use of the

"Pearl" logo which the respondent agreed not to use is that the

respondent had a large old banner with the old logo on it.

The respondent put up the banner at a swimming pool show

currently being conducted in this city, and despite what has been

very ably said on its behalf by Mr Boughen, I do not understand

clearly what right the respondent can possibly have to use the

old "PEarl" logo. It should not do so, both because it is a

clear breach of the agreement made not to use it, and secondly,

because it is rather misleading and suggests a connection with

the applicant which the respondent does not in fact have. Mr

Bouqhen pointed out that in the agreement constltuted by Exhibit

1, there was provision for use of existing brochures. However,

it is not suggested that there was any exception of this banner and, indeed, to except it would have really destroyed much of the point of the agreement.

I am therefore of the view that, prlma facie at least, there is no good answer to the applicant's complaint that this

old "Pearl" logo has reappeared and it should not have done. The

remaining questlon is whether or not the banner of which

complaint is made is otherwise mlsleading, as contalnlng the

applicant's "Poolrite" logo.

;-

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I have photographs of it before me and certainly the

applicant's logo, "Poolrite", is very prominent. Mr Boughen,

however, argues that any reasonable ground for complaint would be

gone If the "Pearl" logo were covered up or otherwise removed.	I	l	r.r
l'. ,
think there is some substance in that submission.

4.

I The vlew which I take, however, is that, although the

;	matter is finely balanced, it is appropriate	o restrain, for the
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time being, the use of the "Poolrite" logo also. Mr Boughen

1	I	pointed out that, according to the evidence, other exhibitors at
the show use the word and logo "Poolrite" to indicate that one
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may obtain the applicant's products from them. The banner,
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l	however, seems to me to suggest that the respondent has a special
connection with Poolrite, either being Poolrite or being a
distributor for Poolrite; it is in fact neither Poolrite nor a
distributor f o r it, and I think the banner is rather misleading
in that respect.

Mr Ramsay gave evidence that the banner is quite an

expensive ltem and he does not want to destroy it. I see no

necessity for its being destroyed. Nevertheless, I am of the

opinion that he should not use the "Poolrite" logo on it nor

:

should he use the o l d "Pearl" logo. He is of course quite free

to use the new "Pearl" logo on it.

In short, my concluslon is that the applicant has

advanced a sufflciently strong case to warrant enjoining, for the

time being, the use on the banner of either of the logos of which

it complains, and I think they should both be removed or covered

up, or the banner removed.

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l 5.

i I wish to make it clear that, as to the "Pearl" logo, it

is my view that both the use of the colours in it and the shape

are objectionable. Both those aspects of objection would, of

course, be removed by use of the logo whlch the respondent agreed

to use in the correspondence, Exhibit 1.

In the form suggested by Mr Boughen, on the applicant's

giving the usual undertaking to pay damages or compensation, I

order that until further order the respondent be restrained from

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i using or displaying a banner prominently shown in the lower two

photographs in Exhiblt C to the affidavit of Peter Alan Rabbidqe

filed herein while such banner continues to display the

i	"Poolrite" and "Pearl" logos depicted thereon, and I wlll order
that he costs of today's application be costs in the
I	proceedings.

i	certlfy that this and the /t	preceding
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i	pages are a true copy of the reasons for
judgment herein of His Honour
Mr. Justice Pincus ,&A Q
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w 7 / a	Associai.~
Dated

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