Reilly Bishop (Vic) Pty Ltd v Associated Electrics Pty Ltd

[1981] FCA 240

Re: REILLY BISHOP (VIC.) PTY. LIMITED and JOHN BISHOP
And: ASSOCIATED ELECTRICS PTY. LIMITED; NOEL FRANCIS CRABBE; JOAN LESLEY CRABB
No. G91 of 1981
Contempt of court

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Morling J.

CATCHWORDS

Contempt of court - interlocutory injunction - respondents enjoined from using "Mr Video" as describing their business - use of "Mr Movies-Video" different logo - no contempt.

HEARING

SYDNEY

#DATE 7:12:1981

ORDER

1. Application dismissed with costs.

JUDGE1

This is not an easy matter to determine. It is a matter of impression and I do not think any good purpose would be served by reserving my decision. Accordingly I propose to give my judgment now.

The applicants seek a declaration that the first and second respondents are in contempt of interlocutory orders made by this court on 24 September 1981. The relevant part of the court's order is in the following terms:

"(i) Upon the applicants giving the court the usual undertaking as to damages, pending the determination of these proceedings or further order I order that the respondents by themselves, their servants and agents be restrained from

(i) using or publishing or causing, procuring or authorising use or publication of the words "Mr Video" in any way in relation to the business of the first-named respondent or any goods and services offered for sale or supplied or distributed, sold or supplied by it;

(ii) representing that they or the business or any goods or services offered for sale or supplied or distributed, sold or supplied by the first-named respondent are connected to or affiliated with the second-named applicant or the business carried on by it."

At the hearing of the application for interlocutory relief there was evidence that the first applicant had used the words "Mr Video" to describe his business, sometimes using those words alone and on other occasions in conjunction with the words "Reilly Bishop" and a photograph of Mr Bishop, the second applicant. The photograph of Mr Bishop was superimposed on the words "Mr Video". There was also evidence that the respondents had caused to be placed in newspapers advertisements using the name "Mr Video" as referring to the business of the first respondent. It was substantially upon that basis that the interlocutory relief was granted.

The basis of the motion is that the first and second respondents have caused to be placed advertisements in a number of newspapers in which the words "Mr Movies Video" have been used as referring to the business of the first respondent. The respondents admit that they were responsible for the publication of the advertisements of which complaint is made.

In the advertisements the words "Mr Movies" are superimposed on the word "Video". The words "Mr Movies" are shown in what has been described as a "comet trail" moving from left to right. The letters in these words are broken by more or less horizontal white lines. This device has no doubt been used to enhance the comet-like appearance of the words "Mr Movies". The "V" in the word "Video" is so printed that it projects into the word "Mr" which is superimposed on it. In addition to the letter "V" being larger than the other letters in the word "Video", it is so printed as to include a triangular section, the base of which intrudes into the word "Mr".

It is alleged by the applicants that, looked at in its entirety, the logo "Mr Movies Video" in reality reads "Mr Video" or, in the alternative, "Mr Movies" and "Mr Video". I should have said in describing the respondents' logo that in the actual advertisement which appeared in the newspapers the word "Video" appears to be in much bolder print than the words "Mr Movies". There also appears to be a greater depth of black colour, if that is the right description, in the word "Video" than in the words "Mr Movies".

My mind has fluctuated on the matter, but I have come to the conclusion that the use of the horizontal lines in the words "Mr Movies" naturally leads the eye from the word "Mr" across to "Movies", that is to say, I read the logo as being "Mr Movies - Video" and not "Mr. Video" or "Mr Video Movies". I see the force of Mr Garnsey's submission that the way in which "Mr" and "Video" are joined together would lead the reader to read the logo as, in effect, "Mr Video". However, on balance, I think the ordinary reader would read across the page from the word "Mr" and thus understand the advertisement as referring to "Mr Movies - Video".

This being so, I do not think that the respondents' conduct infringes the court's order. In my opinion, to be in breach of the first part of the order the respondents' advertisement would need to read as "Mr Video" in some form or another. In my opinion the respondents cannot be said to be in breach of the first part of the order, which enjoins them from using the words "Mr Video" in relation to the business of the first-named respondent.

Mr Garnsey also argued that the respondents have infringed the second part of the order which enjoins them from representing that the business of the first-named respondent is connected with Reilly Bishop (Victoria) Pty Limited. I am not persuaded that there has been such a clear breach of this part of the order as establishes a contempt of it. My reason for coming to this opinion, is again, that the visual impact of the words about which complaint is made is to link "Mr" with "Movies" rather than "Video".

It is, of course, necessary to make out a clear case of infringement of an order to establish contempt of it. I need do no more than refer to the decision of the High Court in Consolidated Press Limited v. McRae 93 C.L.R. 325 where it was held that, as contempt of court is a criminal offence at common law, it must be proved strictly. Other authorities such as In Re Brambervale (1970) 1 Ch. 128 at 137 per Lord Denning are to the same effect. His Lordship there said:

"A contempt of the court is an offence of a criminal character. A man might be sent to prison for it. It must be satisfactorily proved. To use the time-honoured phrase, it must be proved beyond areasonable doubt."

As I have said, my mind has fluctuated on the matter but I do not think it has been proved beyond reasonable doubt that the advertisements are contempt of the order. I therefore dismiss the charges.

The form of the advertisement of which complaint is made has apparently been changed. As I said during the course of argument, I would have thought that there is an arguable case that some members of the public may be misled or deceived within the meaning of section 52 of the Trade Practices Act if the respondents continue to use the logo which I have described above and which provoked these proceedings for contempt. However, it is a different question whether the use of the logo constitutes contempt of the orders already made by the court. Different considerations obviously apply to the present proceedings, not the least being the different standard of proof.

I now come to the question of costs. The respondents have succeeded on the motion. They have been charged with a serious offence and have been acquitted. I do not have any real doubt that their logo was designed to come as close as possible to the applicants' logo without infringing the court's order. But I have found that they were not in breach of the order in taking that course. I think, if I may say so, they took a great risk but the risk has been found to be not too great and, therefore, I think it would be wrong of me to deprive the respondents of their costs. It must be remembered these proceedings are proceedings between two rival traders. I take Mr Garnsey's point that the proceedings were brought for contempt of the order and are not independent proceedings under section 52. There is some substance in his submission that it is proper for a party to proceedings in the court to bring the court's attention to conduct which may constitute contempt.

Nevertheless, I think it would be unrealistic to assume the proceedings were brought for any real purpose other than to protect the applicants' business interests. The proceedings having failed, I think the respondents are entitled to their costs. For those reasons the motion is dismissed with costs.