SociÉTÉ Des Produits NestlÉ SA and Anor v Christian and Anor (No.6)

Société Des Produits Nestlé SA and another sought to vary an injunction previously granted against Christian and another. The dispute concerned the use of trade marks and domain names that were alleged to be deceptively similar to registered trade marks owned by Nestlé. The application before the court was for variation of the existing injunction, specifically to permit the first respondent to use the infringing mark on their website in relation to persons outside Australia.

The court was required to determine whether to vary the injunction to allow the use of the infringing mark on the first respondent's website for overseas visitors. Additionally, the court considered whether to order the cancellation of a domain name registration and a business name registration that included a name deceptively similar to a registered trade mark. The court also had to decide whether to grant an injunction restraining the first respondent from using marks beyond those already found to constitute infringement.

Justice Manousaridis refused the application to vary the injunction. His Honour reasoned that the proposed variation would create an unacceptable risk of confusion and potential infringement within Australia, even if directed at overseas persons. The court applied principles relating to the scope of injunctions and the need to prevent circumvention of trade mark rights. The application for an adjournment or stay of hearing to raise funds for legal representation was also refused, as there was no demonstrable prospect of such funds being raised. The court declined to order the cancellation of the domain name and business name registrations, and did not grant the broader injunction sought, as the existing injunction adequately addressed the proven infringements.