Portland Marketing (International) Pty Ltd v Wulff T/As Razorpit Australia

Portland Marketing (International) Pty Ltd (the applicant) sought an interlocutory injunction against Wulff T/As Razorpit Australia (the respondent) to restrain the respondent from continuing to use the applicant's registered trade mark "Razorpit" in relation to its business of selling and servicing motor vehicles. The applicant alleged that the respondent's use of the trade mark constituted trade mark infringement and misleading and deceptive conduct under the *Trade Marks Act 1995* (Cth) and the *Australian Consumer Law* respectively. The application was heard in the Federal Court of Australia.

The primary legal issues before the Court were whether the applicant had established a serious question to be tried regarding trade mark infringement and misleading and deceptive conduct, and whether the balance of convenience favoured the grant of an interlocutory injunction. Specifically, the Court had to consider whether the respondent's use of "Razorpit" was likely to cause confusion among consumers as to the origin or affiliation of the goods and services offered by the respondent, and whether the respondent's conduct was likely to deceive or mislead the public.

In determining these issues, the Court applied the principles governing interlocutory injunctions, requiring the applicant to demonstrate a serious question to be tried and that damages would not be an adequate remedy. The Court considered the strength of the applicant's registered trade mark and the degree of similarity between the marks and the goods/services offered. It also assessed the potential for damage to the applicant's reputation and goodwill, and the potential harm to the respondent if the injunction were granted and the applicant ultimately failed. The Court found that there was a serious question to be tried regarding both trade mark infringement and misleading and deceptive conduct, and that the balance of convenience favoured the grant of an interlocutory injunction.

The Court ordered that the respondent be restrained from using the trade mark "Razorpit" in connection with its business of selling and servicing motor vehicles, pending the final determination of the proceedings.