Snoid v Handley

[1981] FCA 210

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 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.

1. Otherwise the appeal be dismissed.

1. The appellants pay to the respondents their costs of the appeal other than the costs incurred on 6 November 1981. Order accordingly.

JUDGE1

This is an appeal against the judgment of a single judge of this Court given in proceedings in which the applicants (the respondents to this appeal) obtained final injunctions under s.80 of the Trade Practices Act in relation to breaches of s.52 of that Act. The applicants had alleged that the respondents (the appellants in the appeal) had engaged and were engaging in conduct that was misleading or deceptive or was likely to mislead or deceive contrary to s.52. The applicants also claimed that the respondents had contravened s.53(d) of the Act but his Honour found that there had not been any infringement of that section. No cross-appeal has been brought by the applicants against that finding.

The dispute between the parties arises out of the great interest shown by a section of the community in rock and roll style music and in a version of it known as "the new music". This interest has manifested itself since 1975 in an upsurge of young bands playing for reward in a variety of venues. This case arises out of the circumstance that two of these bands have adopted names which bear a great similarity to each other. Some of the applicants formed themselves into a band to which they gave the name 'POPULAR MECHANICS". The respondents, other than C.B.S. Records Australia Limited ('C.B.S.") formed another band and called it "POP MECHANIX". It is necessary to give a brief account of the history of the bands in order to identify the issues which arise for determination on the appeal.

Late in 1978, a rock music band was formed in Sydney. The band consisted of four people, one of whom was the applicant Russell Handley. About 1 March 1979 it adopted "POPULAR MECHANICS" as its name. By this time the band consisted of five people, namely the applicants, Russell Handley and Garry Manly and three others, Mark Forster, David Lennon and Ian Reckett. On 23 April 1979 it commenced to give live performances of rock music at various venues in and around the centre of Sydney. Sometimes it performed at more distant venues, such as Narrabeen and Ku-ring-gai but most of its performances were in the inner city area. In June 1979 the applicant Mark Handley became the manager of the band. It gave about 76 performances between the end of July 1979 and 15 April 1980. Whenever it performed at these venues it used the name "POPULAR MECHANICS". Several of the venues could hold up to 1,000 people, but most of them were smaller and could hold crowds ranging from 80 to 600 or 700 persons. Sometimes they played as a support group to more popular bands.

In June 1979 an original member of the band was replaced by a new member. There have been other changes in its membership since. Mark Handley and Garry Manley have continued as members of the band since it first called itself POPULAR MECHANICS in March 1979. The applicant Mark Bishop is the band's producer and promoter.

In November 1979 the band released an extended play record entitled "From Here to Obscurity" under its name POPULAR MECHANICS. Some 750 copies of this record have been sold mainly in the Sydney area. Shortly after it was released the record received regular air play on stations 2JJJ Sydney and 2XX in Canberra. One of the tracks on the record ("Flamingo Road") received extensive air play on 2JJJ when the record was first released. It was one of twelve singles played on a rotation system and it was played three times a day for a period of approximately six weeks after its release. After that it was played for several months, probably three or four times a week. Since then 2JJJ has continued to play it.

On 15 April 1980 the band ceased live performances and did not perform live again until 1 November 1980. Between 1 November 1980 and 20 December 1980 it performed on thirteen occasions. However, in June 1980 a recording entitled "You Get The Picture/Furniture" was made by the band. This recording was not released until early December 1980. When released it was issued under the Basilisk Record label.

The band's performances in November and December 1980 were, except for two in Canberra, at venues in and around the centre of Sydney. The evidence suggests that at some of these venues the audiences consisted of many hundreds of people.

On 24 November 1980 a press statement was issued by Basilisk Records announcing the intended release of "You Get the Picture/Furniture" by the band. The press release included a statement that the band had "disbanded" and indicated that a new band had been formed. After its release early in December 1980, the record received air play on a number of radio stations around Australia. The record cover had on it the name of the band in the form "POP-ULAR MECHAN-ICS". The record itself had on it the words POPULAR MECHANICS and underneath the words "Produced by Mr. Bishop and POP MEX. This was not the first time that the short form "POP MEX" had been used to describe the band. From its inception members of the band and other persons aware of its existence referred to it as "POP MEX" and "POP MECHS".

"You Get the Picture/Furniture" was received by 2JJJ late in 1980 and upon receipt it was played for a period once a day six times a week. At the date of trial it was still being played by 2JJJ about three to four times a week. It was also being played by other radio stations including 2XX Canberra and non-commercial FM stations in Melbourne, Brisbane and Sydney. These non-commercial FM stations apparently command an audience of some thousands.

Those who are interested in the music which POPULAR MECHANICS plays are mainly young people between the ages of 12 and 30. At least half of them are of school age. Those who attend the major venues where the band plays include business people, office workers, and school students. It appears that the smallest venues in the inner city area are attended by more avant garde young people.

The type of music which bands such as POPULAR MECHANICS play is referred to as "the new music". It is unnecessary, and probably impossible, to give an accurate description of this music. It is sufficient for present purposes to say that the type of music played by the POPULAR MECHANICS band is much the same as that played by the POP MECHANIX band. That is to say, they both play "the new music".

The learned trial judge found that by early 1981 the name "POPULAR MECHANICS" meant to young people, particularly in Sydney, a young band which performed live in the inner city area of Sydney and had put out the records to which we have referred. In other words, he found that the name had become distinctive of the applicants' band. Evidence was given at the trial that the band had attracted considerable publicity, much of it favourable, in magazines which circulate amongst people interested in the type of music played by POPULAR MECHANICS and POP MECHANIX. Some of these magazines circulate nationally and others locally in Sydney. Their circulations range up to 35,000 copies per issue, but each copy is read by several people. His Honour found that the break in the live performances of the POPULAR MECHANICS band did not destroy the band's reputation. He found that, as at the end of 1980 and as at the time POP MECHANIX appeared on the Australian scene in March 1981, the Australian band was reasonably well known in Sydney amongst those interested in "the new music". His Honour further found that POPULAR MECHANICS' reputation had not been shown to extend beyond Sydney or Canberra. His Honour's finding on this matter is of some importance to one aspect of the appeal and we set it out verbatim:

"However, although its records are played and sold in other cities and some of the magazines I have referred to circulate there, I am not satisfied from the evidence before me that "POPULAR MECHANICS" among persons who attend live performances and buy records of rock and roll music in those places means the Sydney band in which the applicants are interested. It may well be the fact but the evidence in my view does not establish it."

(See p. 215).

POPULAR MECHANICS did not give a live performance after 20 December 1980. However, the record "You Get The Picture/Furniture" continued to get publicity. In the early part of 1981 some of the magazines circulating amongst the new music devotees contained references to POPULAR MECHANICS. Some of these references inferred that the band had disbanded. Reference was also made to Russel Handley joining another band. However, his Honour found that although some members of the public would have believed that POPULAR MECHANICS had ceased to exist by mid-March 1981 when POP MECHANIX commenced their Australian tour, there would still have been a substantial number of people who knew the name POPULAR MECHANICS and who believed that the band was still about and distributing its records. He further found that many people would also have expected it to start playing live again.

It is now necessary to refer to the respondents' band. Their band was formed in New Zealand in April 1979 and adopted the name POP MECHANIX in December 1979. At first the band consisted of four of the respondents. An additional member, the first respondent, joined it in October 1980. It made its first recording in August 1980. The record was released and distributed in New Zealand through C.B.S. New Zealand. Further recordings were released in October 1980 and February 1981. The band attracted favourable attention at the New Zealand Sweetwater Music Festival in early 1981. Reports on that festival and POP MECHANIX's part in it appeared in the Sydney "Sun-Herald" on 1 February 1981 and in one of the magazines already referred to. Following its success at the Sweetwater Festival it was decided that the band should undertake an Australian tour. The members of the New Zealand band first became aware of the existence of the Australian band in February 1981, prior to their coming to Australia. Mr. Karpin, of C.B.S. had become aware of the Australian band late in 1980. Late in February 1981 he had a conversation with Mr. Bishop during which the existence of the New Zealand group POP MECHANIX was mentioned. Mr. Bishop warned Mr. Karpin that it would have to change its name.

POP MECHANIX commenced live performances in Victoria on 17 March 1981 and since then has performed regularly in Australia at venues in Melbourne, Sydney, Canberra and other cities. It has played as a support band to SPLIT ENZ, a band which also originated in New Zealand and which came to Australia some years ago. SPLIT ENZ has since enjoyed considerable success both in Australia and overseas. After the arrival of POP MECHANIX in Australia it received considerable publicity, much of it being related to problems it was having over its name. Publicity was also given to the threat of proceedings by POPULAR MECHANICS and to the fact that such proceedings were subsequently brought.

One of the records made by POP MECHANIX in New Zealand was released by C.B.S. in Australia and widely distributed in all States except Tasmania. The band has appeared twice on the A.B.C. programme "Countdown" which is said to have a total viewing audience of some three million people. "Countdown" programmes are repeated by the A.B.C., so that, in effect, there have been four appearances by POP MECHANIX on this programme. Most of the exposure to the public of POP MECHANIX has occurred since the applicants instituted their proceedings. As stated earlier much of the publicity has referred to the proceedings and to the problems arising out of the use of the name POP MECHANIX.

The record released by C.B.S. in Australia has on it the words "POP MECHANIX" and a reference to the three songs recorded on it. The record sleeve has the words POP MECHANIX in large lettering on it, but there is no reference to the band being a New Zealand band. The venues at which POP MECHANIX has played in Sydney have included a number in the inner city area.

A witness of considerable experience of popular music, particularly of the "new music", gave evidence that he found the two bands to be quite similar. They played a similar type of music and they had a similar style on stage. He said that the same age group of persons would be likely to buy the sort of music the two bands produced. He said that the failure of such bands to give live performances tended to make people expectant about them. He said that as at May 1981, especially in the light of the court case, there was an interest in the whereabouts of POPULAR MECHANICS and this was contributed to by their recently released record. He thought that the majority of young people went out to see regular bands and tended to go more to see the band than the personalities on stage. Whether a band changed a couple of its members was neither here nor there to such young people.

The evidence at the trial showed that the records of both bands are sold in the same retail outlets. They are likely to be found following one another in the same rack.

The facts as we have stated them are drawn from his Honour's judgment. Whilst Mr Hughes Q.C., who appeared for the appellants, argued that his Honour's decision was erroneous in a number of respects to which we shall shortly refer, we did not understand him to argue that his Honour's judgment misstated any of the evidence. Nor was it submitted that any of the facts as we have stated them were not fairly open to be found by his Honour.

In our opinion it was well open to his Honour on the above facts to find that the appellants' conduct was misleading or deceptive or likely to mislead or deceive. Indeed, we would have thought that it was not only likely, but almost inevitable, that such conduct would mislead or deceive a significant number of persons interested in music of the kind played by the two bands. There is a great similarity in the names POPULAR MECHANICS and POP MECHANIX. The bands play similar music. They have a similar style on stage. Their audiences are drawn from the same age group. Their records are sold in the same shops. No reference is made on the record covers in which POP MECHANIX's records are sold to the fact that it is a New Zealand band. The bands play the same type of "new music".

His Honour's finding that the use of the names POP MECHANIX and POP MX without more by the respondents was likely to mislead or deceive was attacked in various ways. It was argued that it was not sufficient for the applicants to prove that the respondents' conduct gave rise to confusion, even if that confusion occurred at what was described as "the point of sale". It was said that if a confused person had his confusion removed before he took any action there was no infringement of s.52. Hornsby Building Information Centre Pty. Limited v. Sydney Building Information Centre (1978) 140 C.L.R. 216 and Cadbury Schweppes Pty. Limited v. Pub Squash Pty. Limited (1980) 2 N.S.W.L.R. 851 at 859 were relied upon in support of this proposition. It was said that as a result of the exposure which POP MECHANIX had enjoyed, the public would be no longer likely to be misled or deceived even if there had been confusion in their minds at an earlier stage. Mr. Hughes referred to the evidence of one witness, the proprietor of a record store, who said that he had pointed out to customers purchasing the bands' records that the bands were different. He also placed great stress upon the failure of the applicants to call any witnesses to say that they had been misled. He made the point that POP MECHANIX could be described as an "up-market" band when compared to POPULAR MECHANICS, because it played to larger audiences at more prestigious venues. He also relied on the references in magazines to the two bands, these references making clear to the reader that they were indeed two separate bands.

We accept that there is some substance in Mr. Hughes' argument. That is to say, we accept that there would be some people whose confusion would be removed in the ways he has indicated. But that is a far cry from saying that the applicants did not make out a case that a significant section of the relevant public would be likely to be misled if the appellants' band continued to play and be advertised in Sydney and Canberra under the name POP MECHANIX. Mr. Hughes referred us to the evidence of five witnesses who said they had been initially confused when they heard of the appellants' band but that their confusion had been dissipated by subsequent knowledge which they obtained. But we do not think this evidence assists the appellants' case. Each of the five witnesses were actually involved in what might be described as the rock music trade. One was the editor of a trade magazine, another an employee of an FM radio station, another a record producer for a large music publisher, another a booking agent for bands and yet another, a record shop retailer. We think it significant that all these witnesses, knowledgeable as they were of the rock music scene, were confused when they first heard of POP MECHANIX. Because of their involvement in the trade their confusion was, in one way or another, removed. But the great majority of people who would be likely to hear the two bands in live performances or on radio, and would be likely to buy their records would not be in the trade. It is true that those who had read references to the two bands in magazines or newspapers and who had remembered what they had read might well not be misled. But it cannot be assumed in favour of the appellants that all, or even the majority of, people would be so knowledgeable as to be able to distinguish one band from the other.

The facts of this case do not make it necessary to give any close consideration to the meaning of "likely" where that word is used in s.52. As Bowen C.J. pointed out in Tillmanns Butcheries Pty. Limited v. Australasian Meat Industry Employees' Union (1979) 27 A.L.R. 367 at 375, the word "likely" is one which has various shades of meaning. As his Honour pointed out:

"The word 'likely' is one which has various shades of meaning. It may mean 'probable' in the sense of 'more probable than not' - 'more than a 50 per cent chance'. It may mean 'material risk' as seen by a reasonable man 'such as might happen'. It may mean 'some possibility' - more than a remote or bare chance. Or, it may mean that the conduct engaged in is inherently of such a character that it would ordinarily cause the effect specified."

In that case his Honour was considering the meaning of the word where used in s.45D of the Act and found it unnecessary to determine its precise meaning as used in that section. Deane J. also considered the meaning of "likely" in s.45D. At p.382 he said:

"The conclusion which I have reached is that, in the context of s.45D(1), the preferable view is that the word 'likely' is not synonymous with 'more likely than not' and that if relevant conduct is engaged in for the purposes of causing loss or damage to the business of the relevant corporation, it will suffice, for the purposes of the sub-section, if that conduct is, in the circumstances, such that there is a real chance or possibility that it will, if pursued, cause such loss or damage."

In our opinion, whatever the shade of meaning be attributed to the word "likely" in s.52, the conduct complained of by the applicants can properly be said to be likely to mislead or deceive. Indeed, as we have already said, we would think that it is almost inevitable that people will be misled or deceived by it.

Mr. Hughes further argued that, whatever may have been the position in the early part of 1981 at the time the applicants commenced their proceedings, and certainly at the time of trial, any confusion which formerly existed had disappeared. He submitted that his Honour had not given sufficient consideration to this matter and that he had confined his attention to the question whether the similarity in the names of the two bands had caused confusion and would have been likely to mislead or deceive as at March 1981 or shortly thereafter. The trial did not take place until approximately three months after the New Zealand band appeared on the Australian scene.

We do not think that his Honour failed to turn his mind to the question whether the use of the name POP MECHANIX was misleading or deceptive or likely to mislead or deceive as at the time of trial. Indeed, it is clear that he did just that. Having carefully referred to the evidence he said at p.43 of his judgment:

"It was also put in argument that as a result of the exposure which POP MECHANIX had had, the public would no longer be likely to be misled or deceived even if, as I understand the argument, there may have been confusion in their minds at an early stage. It is true that the band POP MECHANIX has played very regularly since it commenced in Australia, particularly in Sydney and Melbourne and that there has been a degree of exposure on the programme 'Countdown'. There have been some sales of their records . . . and a slight exposure on radio. However, I have no doubt . . . that the relevant public still regards the name POPULAR MECHANIX and to some extent the name POP MEX as referring to the band in which the applicants are interested. I am also satisfied that the applicants intend to continue to sell and issue records under the name POPULAR MECHANICS or the name POP MEX and to resume live performances using that name. In these circumstances whatever the degree of exposure of POP MECHANIX that may have occurred, I think it will only lead to the deception of the public if the two bands continue to operate in the same market using their respective names. I take this view because, in my opinion, the names are so similar that, unless some step is taken to distinguish them, members of the relevant public are likely to be deceived and misled."

And he further said at p.45 of his judgment:

"It will be apparent that I have formed this view based on the close similarity of the names, the nature of the relevant consuming public and the similarities between the bands and the venues in which they are likely to play and the fact that their records are being sold in shops along side one another in various parts of Australia."

His Honour was clearly of the view that the reputation of the POPULAR MECHANICS band continued up to the time of trial. We do not see any basis for disturbing his Honour's finding on this matter. It is supported by the evidence as to the continuing sales of the band's records and by the evidence that there was an expectation that the band would shortly reappear in live performances. It is further supported by the evidence that one of the band's records was being played about three to four times a week on station 2JJJ in Sydney and was also being played on other radio stations, including a Canberra station. Mr. Hughes invited us to find that his Honour was in error in finding that POPULAR MECHANICS had, as at the date of trial, such a reputation as would lead to the public being misled by the appellants' band being called POP MECHANIX. So far from being persuaded that his Honour was in error on this matter, we share his opinion on it.

It was further submitted that some of the evidence led by the applicants to show that members of the public had been confused was inadmissible. We do not find it necessary to deal with this argument as his Honour's findings are clearly supportable by evidence which was indubitaly admissible. However, we should point out that his Honour made clear in his reasons that his decision was not based on the impugned evidence.

It was also argued that his Honour failed to give weight to the absence of evidence of any actual deception at the point of sale. It was said that such evidence could easily have been adduced had it been available. But such evidence, even if it had been called, would have been of limited importance at the trial. It certainly would not have been decisive. The court must itself determine whether there is a likelihood that the relevant persons will be misled. That is what his Honour did in this case and it was correct that he should do so. In any event, we think that the evidence that people in the trade were confused points strongly to the probability that persons not in the trade would also have been confused and would have taken some step as a result of that confusion, for example, buying a record.

It was further submitted that his Honour failed to give sufficient consideration to the evidence suggesting that the two bands played in different markets. In particular, it was argued that if his Honour had given any weight at all to Mr. Righi's evidence, he would have necessarily have found that the two bands operated in distinct markets. But we do not think that Mr. Righi's evidence, even if accepted in its entirety, cuts down to any significant extent the other evidence to which we have referred. On any view of the evidence, there is a likelihood that persons interested in music played by one band will also be interested in music played by the other.

Mr. Hughes submitted that there was no evidence at the trial that when a record is played on radio an announcement is made of the name of the band or artist making the record and that it was therefore not possible for the applicants to rely upon the playing of their records on radio as establishing their reputation. We do not think there is any substance in this submission. In the first place, there is direct evidence that at least on some occasions the name of the applicants' band was mentioned. In the second place we think it is notorious that it is the almost invariable practice for the name of the artist producing a record to be announced when that record is played on the radio. Perhaps on the odd occasion the artist's name is not announced, but we think his Honour was entitled to assume that on most occasions when the appellants' records were played, the name of their band would be mentioned.

It is further submitted that his Honour's judgment was vitiated by an erroneous view which he took of the object of s.52 of the Act, namely, that its intended operation included the protection of traders. Whether or not it is one purpose of the section to protect the interests of traders, it is clear that the section can be resorted to by traders to protect their interests. See Hornsby Building Information Centre Case (supra) per Stephen J. at p. 226. For the purpose of the present appeal nothing turns upon the validity of his Honour's view because he clearly decided the case upon the basis that the appellants' conduct was likely to mislead or deceive members of the public. His Honour's decision was not based upon a finding that the applicants' interests would be adversely affected, although that was an almost necessary consequence of his finding that the public would be misled or deceived. We are not to be taken to be disagreeing with his Honour's observation. But it is unnecessary for us to pass upon it for the purpose of deciding this appeal.

It was submitted that the form of the first injunction granted by his Honour was too wide. This injunction was in the following terms:

"(1) the sixth-named respondent by itself its servants and agents be restrained from engaging in conduct in trade or commerce 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 of a band or in connection with the promotion sale supply or distribution 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"

No exception was taken to the other injunctions which were so framed as to enjoin conduct in the Sydney and Canberra areas. But it was submitted that having regard to his Honour's finding that the applicants had not established a reputation outside those cities, the applicants were not entitled to injunctions restraining any conduct outside those cities. We think there is substance in this submission. Unless the reputation of the applicants' band is shown to extend beyond the Sydney and Canberra areas it is not possible to say that any member of the public outside those areas will be misled or deceived or would be likely to be misled or deceived. It is true that the first injunction granted by his Honour follows the well known form adopted in appropriate cases in other jurisdictions. See, for example, the form of injunction often granted in proceedings to restrain one trader from passing off his goods as those of another. (See, for example, Seton's Judgments and Orders, 7th edition, Volume I at p. 616). But where, as in this case, there has been a hearing and the evidence has been found not to establish any reputation outside Sydney or Canberra, we think it preferable that the injunctions granted should be so framed as to confine the conduct enjoined to conduct in those places. If the first injunction were to remain in its present form, the question of the reputation (if any) of the applicants' band in places other than Sydney and Canberra would fall to be determined in contempt proceedings. We think this is undesirable. For this reason we think that Order 1 made by his Honour should be amended by inserting the words "in Sydney or Canberra" after the words "commerce", "performances" and "distribution" where they appear in that order. Otherwise, the appeal should be dismissed.

On the question of costs we think that a just order would be that the appellants pay to the respondents their costs of the appeal, other than the costs incurred on 6 November 1981.