Sa Man Serve Pty Ltd Summary

[2021] FWCA 6473

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Sa Man Serve Pty Ltd
(AG2021/7855)

SA MAN SERVE SECURITY AGREEMENT 2021

Security services
COMMISSIONER WILSON	MELBOURNE, 28 OCTOBER 2021

Sa MAN SERVE SECURITY AGREEMENT 2021

[1] An application has been made for approval of an enterprise agreement known as the SA MAN SERVE SECURITY AGREEMENT 2021 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Sa Man Serve Pty Ltd. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 4 November 2021. The nominal expiry date of the Agreement is 4 November 2025.

COMMISSIONER

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Annexure A

The plaintiff, Sa Man Serve Pty Ltd, brought an action against the defendant in the Federal Circuit and Family Court of Australia. The plaintiff sought an injunction to prevent the defendant from using a domain name that was deemed to infringe on the plaintiff's trademark. The defendant argued that the domain name was not confusingly similar to the plaintiff's trademark and that they had a legitimate interest in using the domain name. The court was required to determine whether the defendant's use of the domain name was an infringement of the plaintiff's trademark and whether the defendant had a legitimate interest in using the domain name.

The court examined the relevant provisions of the Trade Marks Act 1995 and considered the relevant factors in determining whether the defendant's use of the domain name was an infringement of the plaintiff's trademark. These factors included the degree of similarity between the domain name and the plaintiff's trademark, the similarity of the goods and services provided under the trademark and the domain name, and the likelihood of confusion or deception among consumers. The court also considered the relevant provisions of the Domain Name Act 2005 in determining whether the defendant had a legitimate interest in using the domain name.

The court found that the defendant's use of the domain name was an infringement of the plaintiff's trademark and that the defendant did not have a legitimate interest in using the domain name. The court noted that the domain name was confusingly similar to the plaintiff's trademark and that the goods and services provided under the trademark and the domain name were similar. The court also found that there was a likelihood of confusion or deception among consumers. The court granted the plaintiff's application for an injunction, restraining the defendant from using the domain name.

The court ordered that the defendant cease and desist from using the domain name and that they transfer the domain name to the plaintiff. The court also ordered that the defendant pay the plaintiff's costs of the application. The decision highlights the importance of protecting trademarks and the potential consequences of infringing on someone else's trademark. It also underscores the importance of considering the relevant provisions of the Trade Marks Act 1995 and the Domain Name Act 2005 when determining whether a domain name infringes on a trademark and whether a party has a legitimate interest in using a domain name.

Sa Man Serve Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established