Rosebank Plastics Pty Ltd v Duncan & Wigley Pty Ltd (trading as D. & W. Australia School Suppliers & Southern Cross Bicycles Pty Ltd)

[1988] FCA 483

-.

CATCHWORDS

DESIGNS - alleged obvious infringement of registered design - interlocutory injunction - whether serious question remains to be tried if Court reaches a concluded view that no obvious

infringement has occurred - balance	of convenience -
inter-relationship between cause	of action under Designs Act
and claims for passing off and breach of	s s . 52 and 53 of
Trade Practices Act.
Desi ns Act ss. 30, 32B

*Ices ACt SS. 5 2 , 5 3 , 80

No VG 109 of 1988

Ryan J

Melbourne

20 April 1988

I

-

IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIA DISTRICT REGISTRY	)	No. VG 109 of 1988
1
GENERAL DIVISION	)

BETWEEN:  ROSEBANK PLASTICS PTY. LTD.

(Firstnamed Applicant)

ROSEBANK PRODUCTS PTY.

LIMITED

(Secondnamed Applicant)

AND :	-	DUNCAN & WIGLEY PTY. LTD.
trading as D & W AUSTRALIA
SCHOOL SUPPLIERS

(Firstnamed Respondent)

SOUTHERN CROSS BICYCLES PTY.

LTD.

(Secondnamed Respondent)

Coram: Ryan J

Date:	2 0 April 1988
Place :	Melbourne

MINUTES OF ORDER

THE COURT ORDERS:

1.     That the injunction granted by the Court on 19 April

1908 be dissolved.

2.     That each of the respondents keep a full and proper account of all sales made by it until the hearing and determination of the application herein of "T16" helmets manufactured by Tong HO Hsing Industrial Co. Ltd., and any helmets identical or substantially identical thereto.

.

3 .     Th ,at the costs of the applicants' claim for interlocutory relief including the hearing on 19 April

1988 and this day be reserved.

4 .     That the claim for interlocutory relief be otherwise dismissed.

AND FURTHER ORDERS BY CONSENT:

5 .     That the defence and cross-claim (if any) be filed and served within 14 days of this day.

6 . That a reply (if any) be filed and served by 11 May

1988.

7.     That each of the parties file and serve by 18 May 1988 an affidavit of discovery.

8.     That any further affidavit or affidavits on which the applicants intend to rely be filed and served by 25 May

1988.

9.     That any further affidavit or affidavits on which the respondents intend to rely be filed and served by 8 June 1988.

10.    That any affidavits in reply be filed and served by 15 June 1988.

11.    That liberty be reserved to either party to apply on

less than 48 hours notice in writing to the other

party.

12. That the costs of the further directions given be

reserved.

13.	That the directions hearing	be adjourned to 24 June
1988.

l

- NOTE: Settlement and entry of orders is dealt with in Order

36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA )

)

VICTORIA DISTRICT REGISTRY	)	No. VG 109 of 1988
1

DIVISION GENERAL 1

BETWEEN:  ROSEBANK PLASTICS PTY. LTD.

(Firstnamed Applicant)

ROSEBANK PRODUCTS PTY.

LIMITED

(Secondnamed Applicant)

AND :	DUNCAN & WIGLEY PTY.	LTD.
-

trading as D & W AUSTRALIA

SCHOOL SUPPLIERS

(Firstnamed Respondent)

SOUTHERN CROSS	BICYCLES PTY.
-	LTD.

(Secondnamed Respondent)

Coram: Ryan J

20 April 1988

-	Date:
Place: Melbourne

REASONS FOR JUDGMENT

an application for an interlocutory injunction restraining the respondents from infringing Australian

This is

manufacturing, importing, keeping for sale, advertising for Registered Design No. 88484 and, in particular, from sale, offering for sale, promoting the sale, selling or supplying a helmet bearing the design as claimed in that registered design. Interlocutory injunctions are also sought restraining the respondents in connection with the supply or possible supply of helmets made in accordance with the said registered design from:-

"(a) engaging in conduct which 1s misleading or deceptive or is likely to mislead or deceive;

(b)	falsely representing that the helmets which are connected in the course of trade with the Respondent, are the helmets of the Applicants or have the sponsorship and/or approval of the Applicants;
(c)	falsely representing that helmets not connected in the course of trade with the Applicants, have the sponsorship or approval of the Applicants or one or other of them;
(d)	falsely representing that the Respondents have a sponsorship, approval or affiliation they do not have."

As well, the applicants seek interlocutory injunctions restraining the respondents from passing off helmets advertised and offered for sale by them as, and for, helmets provided by the applicants or either of them, and from

passing off the respondents as authorized distributors, licensees, dealers or agents of the applicants or either of them and from passing off their businesses as businesses or dealerships that are connected or associated in the course of trade with the applicants or either of them.

By their application, the applicants also seek an interlocutory injunction restraining the respondents from

works being drawings of a helmet design. However, the claim	infringing the copyright said to subsist in certain artistic
for interlocutory relief on that ground was not persisted in at the hearing yesterday.

The firstnamed applicant, Rosebank Plastics Pty. Ltd.,

( "Rosebank") is the proprietor of the said Registered Design

. NO. 88484 which was registered on 28 February 1984 as the result of an applicatlon lodged on 29 July 1982. The Certificate of Registration contains the following statements:-

"Article in respect

of which the design

is registered:	A HELMET.
Statement Of Monopoly:	THE DESIGN APPLICABLE TO
THE SHAPE  OR
CONFIGURATION OF A HELMET AS ILLUSTRATED IN THE ACCOMPANYING REPRESENTATIONS.
Statement of Novelty: NIL.	"

The representations accompanying the Certificate of

Registration consist of four views of a helmet.

Figure 1 provides a frontal view of a helmet with sidepieces designed to depend in front of the ears of the wearer. In each of these sidepieces there is inserted a rivet supporting the front branch of a roughly "U" shaped yoke to which a single adjustable chinstrap is attached. The

front of the helmet is cut away to reveal the	forehead of the
wearer in what has been described as a "Roman Centurion"	style. Above the cutaway section is a narrow band sweeping
back to join the sidepieces in front of the ears and above that band is a depressed panel in the front centre of the helmet flanked on each side by three graduated vents, the largest of which is adjacent to the depressed panel. The depressed panel and graduated vents form part of a raised moulding which sweeps back on both sides and down to stop above the apertures left for the ears of the wearer. A short
distance above that raised moulding sits a separate domed cap
attached to the lower part of the helmet by a rivet above the sidepiece in front of each ear of the wearer. In the domed cap are three depressed channels separated by narrow ridges or ribs corresponding in width to, and directly above, the vents on each side of the frontal panel.
Figure 2 is a side view of the same helmet showing that an aperture is left for each ear of the wearer. Forward of that aperture are set two rivets or screws, one above the other. Similarly placed screws or rivets are set in the side piece which depends behind the ear of the wearer. The side view also reveals that the domed cap sweeps down the back of
the head of the wearer to level with the bottom of the piece
covering the front and sides to which it is joined by yet another screw OK rivet to the rear of and level with the lower of the two screws or rivets set posteriorly to the ear
of the wearer. The channelled and ridged section on each side of the dome is continuous, stopping a short distance above
the bottom of the back of the helmet.
Figure 3 is a view from above the helmet showing that three vents of equal size are set in approximately the middle
of the channels on each side of the top of the helmet.

Figure 4 which shows the rear elevation of the helmet

reveals that	at the bottom	of the channels on each side there
is a further set	of three vents approximately	equal in size

separated by a depressed panel a short	distance above another
depressed panel ending at the bottom rear of	the helmet and

extending from the outermost of the rear	set of	vents to the
corresponding vent on the other side.

The allegedly infringing helmet is made in Taiwan by
Tong HO Hsing Industrial Co. Ltd ("Tong H0 Hsing"), and is

the subject of licence no. 822 issued by the Australian

Standards Association. Unlike the helmet	depicted in the
registered design, it is moulded	in one piece and instead of

being cut away in the "Roman Centurion" style to reveal the forehead of the wearer, it has a peak or visor projecting down and slightly forward to a point roughly level with the

eybrows of the wearer. It has no cutout apertures for the

ears but sweeps gradually upward from the peak or visor over

the ears and down to the nape	of the neck. The chin strap is
not attached to a	"U" shaped yoke but is joined directly to
the shell of the helmet by two rivets	on each side, one
forward of, and the other behind the ear	of the wearer. The

most obvious similarity between the registered design and the

allegedly infringing helmet is that the latter has a similar

pair of tripartite ridged or ribbed channels sweeping from above the nape of the neck across the top of the dome. The

top and rear sets of vents are similarly positioned in those

channels on the two helmets. However, on the allegedly infringing helmet, the front vents are separated from the channels commencing at the front top of the helmet by an indentation in the moulding which sweeps around to each side

l i

and disappears above and slightly to the rear of the ear of

the wearer. There is no discernible difference between the separating them on the allegedly infringing helmet and the
corresponding aspect of the registered design. frontal appearance of the vents and the depressed panel

The applicants relied on expressions of opinion by two experts, the first of whom, Mr Pryor, a patent attorney and solicitor, deposed that on comparing the registered design

with one of the allegedly infringing helmets manufactured by

Tong H0 Hsing:-

"I formed the view that what had been clearly

copied was the distinctive ornamentation of the
design, mainly the ribs which proceeded from the
front to the back of the hat. In addition to the
ribbing there were nine apertures cut into the

hat which were substantially identical with those

of the registered design. These consisted of two

apertures towards the front of the hat, two in the centre and two at the rear. In addition a

moulded line which proceeded from the left to the

right of the hat and which gives the appearance of some sort of separation in the hat was apparent. "

The second expert witness relied on by the applicants was Mr Bayly, an industrial designer of extensive practical

and consultative experience. Mr Bayly set out his

observations on comparing the representations in Registered

Design No. 00404 with	what he called "the Taiwanese helmet"
manufactured by Tong HO Hsing. He	then deposed as follows:-

"14. By the process of examination I formed the view that the rear and top elevation of the Taiwanese helmet are identical in all relevant design respects to Figure 3 and 4 of the Registered Design No. 00404. As to

Figure 3 apart from the line of the external

sun visor and posltion of the rivet shown on the drawlng, the Taiwanese helmet is identical in design. As to Figure 4 and the rear view the Taiwanese helmet is of identical design except that the Taiwanese helmet has a slight curve on the bottom

line.

15.   But for the incorporation of a visor section not being a page-boy shape, with a curving lower edge not having sideboards which sweeps over the ear position and curves downwardly at the rear so as to give it a slightly different appearance fromthe Roman Centurian style, a comparison of the side view and Figure 2 of the Registered Design

and the front view and Figure 1 of the

Registered Design respectively shows that the Taiwanese helmet is identical in all relevant design respects to the registered design. This is best exemplified by

comparison of the side view and Figure 2 on

which I have drawn the curved lower edge in red and the front view and Figure 1 on which

I have drawn the visor section in with a red

line. NOW produced and shown to me and

marked with the letter "PKB1" and exhibited
hereto are the sald drawings.

16.   It is also my view that the ribbing and the apertures as incorporated in the Registered Design are important features to the eye and these have clearly been reproduced in the Taiwanese helmet."

On the other hand, the respondents adduced evidence

from Mr A.K. Russell, the Associate Professor and Head of

Western Australia. Mr Russell emphasized the differences	Department of Design at Curtin University of Technology in
which he discerned between a helmet made in conformity with Registered Design No. 88484 ("the Stackhat") and a helmet made by Tong HO Hsing ("the 'Flying Horse' helmet") which he suggested "are fundamentally different in shape and visual appearance in a number of substantial respects".

The utility of Mr Russell's evidence may have been

reduced somewhat because he had regard, in making his

to representative drawings of the latter helmet, and comparative measurements of the two helmets made by Mr E.F. Allan, a technical draftsman. In addition Mr Russell had

comparison, not only to the representations in Registered also

regard to photographs of school-aged children wearing each of

the "Stackhat", the "Flying Horse" helmet and a	helmet
produced by another manufacturer and sold	under the name
"Hartop"	.
Mr Russell summarised the difference in basic form between the "stackhat" and the	"Flying Horse" helmet as
follows:-

" (i)	The 'Stackhat' has a distinctly lower, flatter or 'squared-off' overall visual profile which gives it the appearance, when worn, of being on 'top of' the head. In
contrast, the 'Flying Horse' helmet is of a
significantly more rounded or
'head-hugging' form.

(ii)   This appearance is further emphasised by

increases the visually apparent frontal its use of an integrated visor which

surface area of the helmet and results in
obscuring much of the wearer's upper face."

fir Russell also noted the following differences in what

he called "accommodation of the ears" provided by the two
helmets:-

"The 'Stackhat' makes a positive provision, which

is visually apparent, for accommodating the ears

of the wearer by means of substantial cut-outs which appear on either side of the lower shell of the helmet.

The 'Flying Horse' helmet, in contrast, allows

the lower edge of the helmet rim to flow smoothly

from the mid-lower point of the visor at the front to the back of the helmet with a gradual

-	upward curve over the normal position of the ears.
The conclusion in respect of accommodation of the ears is supported by reference to not only the helmets themselves but in particular their use on school age children as is demonstrated in Exhibit 'AKR7' and in particular photographs 3 , 4 and 5.
This aspect of difference between the two helmets
is further emphasised when considering the
representative drawings prepared by Mr. Allan and
seen in Exhibit 'EFA2' and in particular Figure 2
and comparing this to Figure 2 in Exhibit 'GRP1'
to Mr. Pryor's first affidavit."

Next Mr Russell relevantly described the differences

which he discerned between the chin strap design and

arrangement of the two helmets by observing:-

"The 'Stackhat' uses a single chin	strap which is
not fixed directly to the shell of the	helmet but

attaches to a separate 'U' shaped yoke. This yoke in turn 1s fixed by large bright metal rivets to each side of the distinctive cut-out detail for the ears as detailed in paragraph 3 sub-paragraph 2.1 of my report which appears on page 9 of same. The straps are secured under the chin by simple toggle OK slip-ring.

In contrast, the 'Flying Horse' helmet employs a

distinctive two piece	strap which	is secured
directly to the lower rim of the helmet	in direct

visual contrast to the device used in the

'Stackhat' as explained above."

Then after comparing the "vents, ribs and recessed

bands" on the two helmets, Mr Russell opined that "it is

clear that whilst there is a considerable degree of

similarity in the design of the 'Stackhat' and 'Flying Horse'

ventilation systems they are in fact the subject of many

actual differences in the size and proportion of the

apertures and in the depth and angle of the ribs where they

help form the grilles on the top and rear of the helmet."

On the basis of a review of the prior art Mr Russell opined that "the prior art with regard to ventilation holes

and methods of venting so as to allow escape of heated air is

so wide and generally	known and used in such a vast array of
applications throughout industry that	I am of the opinion
that the degree of	novelty O K originality in respect of the

manner of use of the venting in the 'Stackhat' design must be

considered as being within	an extremely small compass."
A l s o included in Mr Russell's	affidavit was some hearsay

evidence that the "Flying HOKSe" helmet designated "T-16" by
its manufacturer, Tong HO Hsing, evolved from an earlier
model "T-12" which, Mr Russell said he had been told, had
been produced by Tong HO Hsing since 1977. Mr Russell then

went on to say:-

"The addition of the ventilation holes in the T-16

'Flying Horse' helmet is, in my opinion, an

incorporation of the general idea for such

ventilation methods which was clearly drawn from prior art and which art includes the 'Stackhat'

design."

After referring to a general acceptance that the

helmets must be designed to transfer heat from the head, MK

Russell reiterated that the degree of novelty or originality

that could be said to attach to a ventilation system such as

is used in either the "Stackhat" or "Flying Horse" helmets

exists within a very small compass indeed. He then

concluded:-

"A further consideration limlting the compass is the fact that a designer must not include a ventilation system which achieves the purpose at the expense of the integrity of the helmet's structure. The designer also needs to take into

account the desirability of maintaining a visually attractive presentation. These restrictions as well as the Australian Standard Association's and taking into account the prior art, result, in my opinion, in there being a very limited number of ways of achieving adequate ventilation."

The expert evldence has been useful in indicating points of difference and similarity between the registered design and the allegedly infringing helmet and ensuring that none of those points has been overlooked. However, I find it unnecessary to form a preference for one expression of expert opinion over the other. As Lockhart J. pointed out in Firmagroup Australia Pty Ltd v Byrne & Davidson Doors (ViC)

Pty Ltd (1986) 67 A.L.R. 29 at 37:-

"It is for the

court to determine the meaning of a

design in any proceedings under the Designs Act
whether the central question be the meaning of
the design, novelty or infringement. Some
designs are simple so that the court needs no
expert assistance to interpret them. Other
designs are complex and judges require technical

assistance to understand them. Such evidence is

plainly admissible but ultimately it is for the court to rule on the meaning of a design. Similarly, the understanding and interpretation of prior art may call for expert assistance to be provided to the court for similar reasons. On

the other hand, prior art may be a fairly simple matter in a particular case, requiring little or no technical evidence."

In my view it needs little or no technical evidence to acknowledge that the scope for novelty of design of a safety helmet is severely constrained by the purpose to which the article is to be put and the essential requirement that it fit and protect the human head. Within those constraints one design can differ from another principally in the extent, beyond the functional minimum, to which the head is covered,

the shape and collocation of apertures to provide

ventilation, and in matters of ornamentation which do not

affect the function of the article.

There is substantial identity between the location and

dimensions of the ribbed channels on the two helmets in this case and in the size, number and location of the vents let into those channels. However, Rosebank has chosen by its statement of monopoly to obtain the protection of the Designs

-	Act 1906 for "The design applicable to the shape or
configuration of a helmet as illustrated in the accompanying representations". It has not elected, as the definition of "statement of monopoly" in s.4 of the Designs Act permitted it to do, to confine the statement to particular features of
its design such as the ribbed channels and the configuration
of the apertures for ventilation. Nor has it indicated, as paragraph (b) of the definition of "statement of monopoly"
contemplates it might have, any of those features of the
representations of the helmet to which its design has been
applied "that are to be disregarded in considering the extent
of the monopoly protection".
Those considerations in combination with the absence of a statement of novelty have the effect, as Jacobs J observed
in D. Sebel & Co. Ltd. v. National Art Netal Co. Pty. Ltd.
(1965) 10 F.L.R. 2 2 4 at 228:-

“that it is	necessary to regard each article as a identity between them. ’...the application for the design in suit did not include any statement of the alleged novel features in respect of which
whole and see whether there is a substantial
protection was claimed, and the registered
proprietors were not in consequence fettered in their submissions as to the particular features of this chair which should be had in mind when the ambit of the copyright monopoly was being considered. The absence of any such indication of novelty, whilst opening the door to that freedom, at the same time opens it equally widely to attack because an alleged infrlnger although he may adopt some of the features of the design may point to respects in which the alleged infringing object differs in shape or configuration, and suggests that such differences, not individually or in sum, constitute such a difference as to alter the design as a matter of substance’ (W. Lusty h Sons Ltd. v. Morris Wilkinson & Co. (Nottingham) Ltd.
(1954) 71 R.P.C. 174, at pp. 179, 180.”

The applicants, for the purpose of the present claim for interlocutory relief, have confined themselves to contending that the helmet manufactured by Tong Ho Hsing is an obvious imitation of Registered Design No. 88484. Accordingly the Court must be satisfied that there is a

serious question to be tried whether a visual comparison of

the alleged infringing article and the registered design,

each viewed as a whole, establishes that the former is ”a copy (of the registered design) apparent to the eye

notwithstanding slight differences“;	see Malleys Ltd. v J.W.
Tomlin Pty. Ltd. (1961) 35 A.L.J.R.	352 at 354.

The question was similarly identifled, although in somewhat different terms, by Lockhart J in the following passage from Firmagroup Australia Pty Ltd v Byrne & Davidson

Doors (Vic) Pty Ltd (supra) at 40:-

“TO constitute direct infringement the essential

features of the registered design must be applied

to the accused design. It is not necessary that all features be taken; minor or inessential

features need not be taken:	Grafton v Watson
(1884) 51 LT (NS) 141 at 144.	The accused design

must be in essence the same as the registered design and must have all its salient features.“

I have examined the drawings accompanying the registered design instructed by an examination of a helmet made by Rosebank in conformity with that design. I have also examined with similar care the design of the allegedly infringing helmet as embodied in two examples of the helmet itself, and have had the advantage of drawings by each of Mr Bayly and Mr Allan claimed to embody that design. Upon comparing in the light of those examinations, the allegedly infringing helmet as a whole with the registered design as a

whole, I am left with the overall impression that it is not

an obvious copy of the registered design, although it does

channelling from the front and across the top of the helmet	incorporate one of its salient features, the sweep of ribbed
to provide three sets of strategically-placed ventilating apertures. Identity in one such salient feature is not sufficient to constitute obvious, as distinct from fraudulent, infringement. As Neville J concluded in Sacket and Barnes v. Clozenberq (1909) 27 R.P.C. 104 at 107:-

"On the one hand it was argued that to copy any important feature of a registered Design is a fraudulent imitation of the Design within the meaning of the Act of 1883. On the other hand it was argued upon the authority of Holdsworth v.

- McCrea ( L . R . 2 H.L. glven to any part of the Design but only to the 380) that no protection is	Design as a whole and that it is not illegal, and
therefore not fraudulent, to copy any part or parts of a registered Design so long as the resulting Design is not substantially identical with it, and that there being nothing in the present registration to distinguish between old and new, if any part of the Design is protected every part must be, including the carcase, and the carcase of the sldeboard in the Defendant's registered Design No. 511,326 being proved to be old the registration must be bad.
I have not been referred to any authority for the proposition that part of a Design is protected where the whole is reaistered. while Holdsworth
v. M'Crea (ubi su ra)-and
supra) lay A own t e contrary. See Barran v.

~

Lomas, ubi supra.)

It appears to me that if it is desired to protect a particular feature in the general design of a sideboard it must under the Act of 1883 be registered or claimed separately. The issue in the present case therefore presents itself thus:- Are the sideboards of the Plaintiffs imitations of the Defendant's Designs? To which must I

answer, NO. They contain imitations of parts of them but the general designs are distinct."

It might be thought that the anxious consideration and
detailed examination which I found it necessary to undertake
before reaching the conclusion which I have just indicated demonstrates that the applicants have raised a serious

question to be tried. However, as I have already said, the issue of obvious infringement is one to be resolved by the Court on the basis of a visual comparison. That resolution at the trial is unlikely to be assisted by evidence signifiantly different from or additional to that which is presently before the Court. Accordingly, I consider that the firm conclusion to which I have come negatives the existence of a serious question to be tried as to that issue. In my view, the observations of Barwick C.J. in General Steel Industries Inc. v Commissioner for Railways (N.S.W.) (1964) 112 C.L.R. 125 at 130 on the principles applicable to the jurisdiction to strike out a pleading which does not disclose a reasonable cause of action may be paraphrased to apply to the identification of a serious issue to be tried in a case

like the present. His HOnOUK there said:-

"Although I can agree with Latham C.J. [in Dey v 62, at D. 841 when he said that the defendant should -be saved from the vexation of the continuance of useless and futile proceedings, in

my opinion great care must be exercised to ensure

that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction

should be reserved for those	cases where argument
is unnecessary to evoke the	futility of the

plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed."

The only conduct or representations of the respondents which have been pointed to by the applicants as contravening	s.52 or s . 5 3 of the Trade Practices Act, have been involved
in the promotion and offering for sale of helmets manufactured by Tong HO Hsing. There is evidence that those helmets have been marketed under the name "Flying Horse" in cardboard boxes having colours, artwork and descriptive words very similar to those on the boxes in which the "Stackhats" manufactured by the applicants are distributed. However MC
Chernov, Q.C., who appeared with Mrs Crennan for the applicants, disclaimed any reliance, for the purpose of the
present claim for interlocutory relief, on that similarity. Nor did counsel for the applicants seek to make anything of the striking similarity in colour between the pink helmet in
the "Flying Horse" range and the pink "Stackhat". As well as
the differences in design, to which I have already referred, between the "Stackhat" and the helmet manufactured by Tong HO Hsing, there is also a significant difference in the trade marks or brand names exhibited by the two helmets. The applicants' article has the words "Rosebank Stackhat" moulded in raised lettering as part of the depressed panel between the front vents. Some of the helmets manufactured by Tong Ho Hsing, by contrast, have adhesive transfers bearing the words "Flying Horse" in several stylized arrangements affixed to the front and back of the helmet. I infer that the helmets distributed by the second-named respondent have similar
transfers bearing the legend "Southern Cross". There is no evidence that any actual or potential purchaser of safety helmets has been misled or deceived into believing that the
manufactured or distributed by either of the applicants. article manufactured by Tong H0 Hsing is a "Stackhat" or is
Such evidence as there is at present tends to suggest a sharp distinction between the two helmets has been established in the relevant market by reason of the much lower retail price of the Tong Ho Hsing helmet and the different licence issued
in respect of it by the Australian Standards Association.
Accordingly, because of the conclusion which I have reached

. . on the claim for obvious lnfringement of the Rosebank's

registered design, it follows that I cannot identify a

serious question to be tried arising from the claims under

the Trade Practices Act.

No act of passing off has been suggested by the

applicants to have been constituted by any conduct of the respondents distinct from that alleged to contravene s.52 or

s.53 of the Trade Practices Act. An interlocutory injunction

pending the determination of that cause of action must

therefore be similarly refused.

If I were wrong in holding that no serious question to

be tried has been demonstrated in any of the ways contended for by the applicants, I would consider the balance of convenience to be against the grant of interlocutory relief. Factors which would tend to that conclusion include the undertaking offered by the respondents to keep an account of all sales of helmets made by them until the hearing and determination of the action and the assurance that the Court

can give that such hearing and determination at first
instance can occur with the co-operation	of the parties

within 4 months. I would also be influenced in weighing the balance of convenience by my perception or evaluation of the strength of the applicants' case on obvious infringement; (see Castlemaine Tooheys Ltd v South Australia (1986) 60 A.L.J.R. 679 at 682).