Re: ANDREW SNOID, PAUL SCOTT, PAUL MASON, KEVIN EMMETT and CHRISTOPHER MOORE;
CBS RECORDS AUSTRALIA LIMITED
And: MARK HANDLEY, RUSSELL HANDLEY, MARTIN BISHOP and GARY MANLEY
(1981) 54 FLR 202
No. G91 of 1981
Trade Practices - Injunctions
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Northrop(1) and Morling(1) JJ.
CATCHWORDS
Trade Practices - Consumer protection - Misleading or deceptive conduct - Use by band of name "Pop Mechanix" - Likelihood of confusion with band using name "Popular Mechanics".
Injunction - Limitation of area in which order operates.
Trade Practices Act 1974, s.52.
Trade Practices - Consumer protection - Misleading or deceptive conduct - Use by band of name "Pop Mechanix" - Likelihood of confusion with band using name "Popular Mechanics" - Injunction to restrain misleading or deceptive conduct - Limitation of area in which order should operate - Trade Practices Act 1974 (Cth), s. 52. Injunctions - Injunction to restrain misleading or deceptive conduct - Limitation of area in which order should operate - Trade Practices Act 1974 (Cth), s. 52.
HEADNOTE
The applicants were members of a Sydney pop music band which was formed in 1978 and, by March 1979, was using the name "Popular Mechanics". The respondents were members of a similar band formed in New Zealand in April 1979 and using the name "Pop Mechanix". In 1981 they came to Australia where they gave performances in several States. Both bands played the same type of music which appealed to the same section of the public; both gave live performances; and both had made records which were distributed in Australia and played by several radio stations.
At the trial of the action it was found that a significant section of the public was likely to be misled or deceived if the respondents continued to perform, make records, and to advertise, using the name "Pop Mechanix", and an injunction was granted restraining the use of that, or any similar, name by the respondents. It was also found that the applicants' reputation had not been shown to extend beyond Sydney and Canberra. The respondents appealed.
Held: (1) Since the reputation of the applicants did not extend beyond Sydney and Canberra, no member of the public outside those areas was likely to be misled or deceived by the conduct of the respondents, and the injunctions should be confined to conduct in those areas. Otherwise the appeal would be dismissed.
(2) Form of an injunction against misleading or deceptive conduct considered.
HEARING
Sydney, 1981, November 5-6, 11. #DATE 11:11:1981
APPEAL.
The facts appear from the judgment.
T. E. F. Hughes Q.C. and B. C. Oslington, for the appellants.
C. J. Bannon Q.C. and P. J. Deakin, for the respondents.
Cur. adv. vult.
Solicitors for the appellants: Allen, Allen & Hemsley.
Solicitors for the respondents: Curwood & Co.
R. R. BOADEN
ORDER
1. The Order made by Ellicott J. on 7 July 1981 be varied by substituting for paragraph (1) the following:
(1) The…
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- AGLC
- Snoid, Andrew & Ors v. Handley, Mark & Ors [1981] FCA 210 ((1981) 54 FLR 202)
- Case
- [1981] FCA 210
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the use of the name "Pop Mechanix" by the defendants constituted misleading or deceptive conduct under the Trade Practices Act 1974, and if so, whether the court should grant an injunction against such conduct. The plaintiffs argued that the name "Pop Mechanix" was confusingly similar to "Popular Mechanics" and that this was likely to mislead the public into believing that the two bands were connected. The defendants, on the other hand, contended that there was no likelihood of confusion and that the name "Pop Mechanix" was original and distinct.
The court considered the evidence and arguments presented by both parties. It found that the name "Pop Mechanix" was indeed confusingly similar to "Popular Mechanics" and that there was a significant likelihood of confusion among the public. The court held that the use of the name "Pop Mechanix" by the defendants constituted misleading or deceptive conduct under the Trade Practices Act. Consequently, the court granted an injunction against the defendants, prohibiting them from using the name "Pop Mechanix" or any colourable imitation of "Popular Mechanics" in connection with their band in Sydney and Canberra. The court also ordered that the plaintiffs were to be awarded their costs of the appeal, except for those incurred on a specific date.
Orders
Orders of the court
1. The Order made by Ellicott J. on 7 July 1981 be varied by substituting for paragraph (1) the following:
(1) The sixth-named respondent by itself its servants and agents be restrained from engaging in conduct in trade or commerce in Sydney or Canberra that is misleading or deceptive or is likely to mislead or deceive by using the name POP MECHANIX POP MEX or POP MX or any other colourable imitation of the name POPULAR MECHANICS or of the name POP MECHS in connection with the promotion or the performances in Sydney or Canberra of a band or in connection with the promotion sale supply or distribution in Sydney or Canberra of the music songs recordings or video tapes of or by a band in such a way as to mislead or deceive members of the public into believing that such band is the band known as POPULAR MECHANICS of which the second, third and fourth named applicants are or have been members.
2.
Otherwise the appeal be dismissed.
3.
The appellants pay to the respondents their costs of the appeal other than the costs incurred on 6 November 1981. Order accordingly.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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