Street, C.Y & Anor (Trading as Caboolture Motel) v Jedminster Pty Ltd & Anor Caboolture Motel

[1988] FCA 307

TPADE PRACTICES - Consumer protection - Misleading or deceptlve conduct - Passing off - Riqht to interlocutory injunction - rJse of similar descriptive trade names - Two motels in small town - Applicants' older establishment called "Caboolture Motel" - Applicants seeking to restrain respondents from calling new

establishment "Caboolture Hotel Motor Inn".

Trsde Practices P.ct 1074 s.52

SPENDER J.
BRISBANE
7-2 JUNE 1988.

I .

.

IN THE FEDERAL COURT OF AUSTRALIA	)
)
QUEENSLAND DISTRICT REGISTRY	) QLD. G208 of 1988
!
GENERAL DIVISION	!

CAROL WONNE STREET and ANTHONY WINSTON STREET

trading a3 the "CABOOLTURE MOTEL"

Applicant

.m :

JEDSMINSTER PTY. LTD.

First Respondent

.m :

TURBOT R O W GEORGE PTY. LTD.

Second Respondent

.JUDGE MAKING CRDER:	SPENDER J.
@ATE OF ORDER:	2 2  J U N E 19RE
WHEP.E MADE:	BRISB?.NE

THE CO1JF.T ORDERS THAT:

1. 'Jpon the applicants, through their

counsel, qlving the usual undertakings a:

to damages, the first snd	Second
respondents by themselves or by	their

servants or agents or any of them be

restrained until the trial of the action

or earlier order from using by way of

advertising otherwise or the name

"Caboolture Hotel Motel", "Caboolture

Hotel Motor Inn", or Caboolture	Hotel
Motel Inn" or	any other words combining

the word "Caboolture" with the words

"Motel" or "Motor Inn", by reference	to
the business carried	on at Morayfield

Road, Morayfield, first the by

respondent.

. 2 .

2 . After fourteen days of today's date, the

first second and respondents by

themselves or by their	servants or agents
qr any of	them be restrained until the
trial of the action	or earlier order from

using any Sign3 I advertisements,

stationery, staff uniforms and any other

item wherein or whereon the words

"Caboolture Hotel Motor Inn" or

"Caboolture Hotel Motel" or "Caboolture

Hotel Motel Inn" or any other name

containing the words "Caboolture" and

"Motel" or "Motor Inn" in respect	of the
said business.

3 . Each party have liberty to apply on

reasonable notice.

4 . The matter to be brought on again for

directions on seven days' notice to	the
other parties.

5. Costs and incidental of the to

3pplication are reserved.

Note: Settlement and entry of orders is dealt wlth by Order 36

of the Federal Court Rules.

.

IN THE FEDERAL COURT OF AUSTRALIA	) )
QUEENSLAND DISTRICT REGISTRY	) QLD. G208 of 1988
1

DIVISION GENERAL )

BETWEEN:

CAROL YVONNE STREET and ANTHONY WINSTON STREET

t r a a i n g T X i T 0 0 ~ ~ ~ ~ ~ MOTEL"

Applicant

AND :

JEDSMINSTER PTY. LTD.

First Respondent

AND :

TURBOT ROMA CEORGE PTY. LTD.

Second Respondent

SPENDER J.
BRISBANE

22 JUNE 1988.

REASONS FOR JUDGMENT

The applicants, who trade as the "Caboolture Motel" in

Caboolture, seek interlocutory relief. They claim against the first respondent:-

" 1. An interim injunction restraining the

Respondent its servants O K agents or any of

them from continuing to use either by way of

advertising	otherwise,	or	the	names
"Caboolture	Hotel	Motel"	or	"Caboolture

L.

Hotel-Motor Inn" or "Caboolture Hotel-Motel
Inn" or any like name in reference to the
business carried on by the Respondent at
Morayfield Road, Morayfield in the State of

Queensland;

2. An interim injunction compelling the

Respondent to forthwith remove from the

premises situated at Morayfield Road,

Morayfield and ceased (sic) the use of all

signs, advertisements, stationery, staff

uniforms and any other item whatsoever

wherein or whereon the words ''Caboolture

Hotel-Motor Inn" or "Caboolture Hotel Motel"

or "Caboolture Hotel Motel Inn" or like

words are used in respect of the said

business."

The business now known as the "Caboolture Motel" has

been carried on for approximately ten years, orlginally as the

"Motel Caboolture" . The name "Caboolture Motel" has been

registered as a business name under the Business Names Act 1962

(Qld.) since 9 October 1985, and Mr. h Mrs. Street became the

registered proprietors of that business on 1 August 1986 and have

continued to conduct business under that reglstered business name

to the present.

Jedsminster Pty. Ltd. is the licensee of an hotel

conducted at Morayfield Road, Morayfield. The second respondent,

Turbot Roma George Pty. Ltd., is the registered proprietor of the

land on which the hotel-motel business is conducted. The

business opened on 21 December 1987. The nominee of the licensee

is Mr. Walter Bennie. He is employed by the first respondent and

manages the complex. There are sixteen motel style accommodation

units.	The	licence	is	registered	in	the	name	"Morayfield
Hotel-Motel".	There	had	previously	been	an	hotel	on	the

Morayfield Road property which had conducted business for many

years under the name of "Morayfield Hotel". This building was demolished and a modern complex, consisting of an hotel with a large drive-in bottle department as well as sixteen motel units, was constructed and commenced business in late 1987.

On 19 January 1988, solicitors for the applicants wrote

to the manager of the first respondent. That letter stated in
part:-

"Our client has noted that the business name "Caboolture Hotel Motel" appears on signs about the property at Morayfield, on clothing worn by certain staff members, in advertisements in local newspapers and is listed with telecom (sic) and is generally used to promote the business carried on at Morayfield.

On a number of occasions our client has made

bookings for guests, particularly interstate guests, only to find that the guests through obvious confusion, ended up staying at your premises. Our client is also continually receiving phone calls and correspondence intended for your business, again because of the confusion between the associated names."

The letter indicated that fourteen days would be allowed for the removal of all signs, advertising material and listings with

Telecom in respect of the name "Caboolture Hotel Motel".

After some communication between the respective

on altering the name under which it trades to Caboolture Hotel". This letter was acknowledged on 11 March, and the solicitors for the applicants indicated:-

solicitors, the solicitors for the first respondent wrote 9

"...our client is prepared to allow a further 21

days to enable your clients to replace all the

signs and other matters that may have any

reference to the name "Caboolture Hotel Hotel". if no action is taken during this time."

On 29 April, the solicitors for the applicants again wrote

complaining of the continued advertising as the "Caboolture Hotel the solicitors for the respondents wrote and said:-

"We confirm that in accordance with previous

correspondence the previous sign has been removed
and replaced with a sign 'Caboolture Hotel Motor

Inn'."

The letter continued:-

"Further, all other references to the previous name have now been deleted and all appropriate parties have been notified accordingly so that the future

trading name of the business will be 'Caboolture

Hotel Motor Inn'.

We submit that, without any admission that the

name 'Caboolture Hotel/Motel' could have been

confused with your clients' business, in an

abundance of caution our client has agreed to

change the name to Caboolture Hotel Motor Inn."

While the previous correspondence included reference to

the removal of a sign, there is nowhere any earlier reference to

an intention to carry on business under the name "Caboolture

Hotel Motor Inn"; in fact, the letter of	9 March 1987 is directly
to the contrary. In	a letter dated 31 May 1988, the solicitors

for Jedsminster Pty.Ltd. indicated:-

". . .our client proposes to trade under the name

'Caboolture Hotel Motor Inn' and is prepared to

give an undertaking to the Court that it will not

use the name 'Caboolture Hotel Motel'. It is our

contention that the other forms of restraints are too wide and our client is not prepared to give undertakings in those terms."

The respondent had sought registration of the name "Caboolture Hotel/Motel", but this had been rejected by the

Commissioner for Corporate Affairs. The rejection of the

registration was accompanied by a statement that "[tlhe name

applied for could be confused with or mistaken for the presently registered Caboolture Hotel and Caboolture Motel". The evidence is largely silent as to who were or are the registered proprietors of the name "Caboolture Hotel", but one may infer from the yellow pages of the telephone directory which lists the name "Caboolture Hotel" at the address Morayfield Road, Morayfield, that they are entities associated wlth the respondents or their predecessors. ~t is to be noted that, according to the white pages of the Caboolture telephone directory, a number of buslnesses wlth the word "Caboolture" in

their name give an address as Morayfield Road, Morayfield,

including "Caboolture Air Conditionlng", and "Caboolture Autoland

Mitsubishi".

Caboolture is a small town sltuated some 4 5 kilometres

north of Brisbane. In the general region of Caboolture there are

a number of satellite communities such as Toorbul, Brlbie Island,
Morayfield and Beachmere. Caboolture has a primary school and a

high school, train station and postcode. Morayfield likewise has a state school, high school, train station and postcode.

The hotel-motel is located at Morayfield Road,

Morayfield, about 200 metres south of the Caboolture/Morayfield boundary, on the southern entrance and exit road to Caboolture.

The Caboolture Motel is approximately 1.5 kms. away, on Lower

King Street, which is in the centre of Caboolture. It is

situated on the main arterial road from the Bruce Highway into

Caboolture.

Since the hotel-motel commenced business, it has used,

in one way O K another, the names "Caboolture Hotel Motel",

"Caboolture Hotel Motor Inn", "Caboolture Hotel/Hotel Inn",

"Morayfield Hotel/Hotel" and "Wellers Hotel-Hotel Inn".	Up until
26 Hay 1988, a	large neon sign contained the words "Caboolture
Hotel Hotel"; but on that day it was replaced by	a similar slgn

bearing the words "Caboolture Hotel Motor Inn". Uniforms and the
hotel letterhead previously used the name "Caboolture Hotel

Motel".

The advertisements for the Caboolture Hotel Motel are

extensive and generally highlight the "specials" available at the
liquor barn drive-in, as well as the family restaurant and the

available entertainment. The advertisements variously referred

to the hotel as the "Caboolture Hotel Motor Inn", the "Caboolture

Hotel Motel", and "Wellers Caboolture Hotel Motor Inn". The

address is given as Morayfield Road, Horayfield	or as Morayfield
Road, Caboolture.

Mr. Street, the male applicant, deposes that on 2 1

January 1988 he received a letter at the "Caboolture Motel",

addressed to the "Caboolture Hotel Hotel", with the address being

l .

given as 4 Lower King Street, Caboolture. Mr. Street readdressed

the letter and forwarded it on to the respondents' hotel. He

deposes that on 9 May 1988, a person from the Department of

Social Security at Redcliffe was inquiring after	a person who had
allegedly stayed at the Hotel	on 29 April 1988. It appears that

the inquiry ought to have been directed to the Caboolture Hotel the Caboolture Motel. On 16 May 1988, persons mistakenly arrived

at the premises of the applicants, but in fact had made	a booking
at the respondents' hotel.

Hr. Street also deposes, on an information and belief

basis, to an occasion when a person who had booked at the

Caboolture Motel in February had mistakenly stayed at the

Caboolture Hotel Hotel.

The Caboolture Motel 1s the only motel in Caboolture. It

consists of ten self-contained units and a laundry, with a

manager's residence and reception area. It is advertised In

Jasons Queensland Accommodation Guide, the R.A.C.Q. motorists

accommodation gulde, and in the Caboolture Shire Information

Guide, of which about 20,000 glossy copies are issued every six

months.

The applicants assert that carrying on the hotel-motel

business as the "Caboolture Hotel HotOK Inn" constitutes

misleading and deceptive conduct, in trade	or commerce, contrary
to s.52	of the Trade Practices Act 1974. It is said that there
are two aspects of this conduct: the first as	to its capacity to

mislead members of the public concerning the business conducted

by the respondents and the business of the applicants, and

secondly, as to the misdescription of the locality of the

business of the respondents.

It was then submitted that the applicants and the

respondents are engaged in the same business in a relatively

small community, that the "keyword" in the name of each business

is the same, and that it	is conducted in a field where consumers
would not be expected to exercise	a fine discrimination.

It is clear that the businesses are by no means

identical. The physical layout of each business is different.
The hotel-motel complex has its drive-ln liquor barn as an
important part of its operation as well as the provision of

entertainment and restaurant meals. The provision of motel type

accommodation is but a facet of a much larger operation. The

applicants' business, on the other hand is essentially smaller,
and centred on the provision of accommodation, although meal

facilities are available.

The evidence concerning the operation of the Caboolture

motel uniformly points to	a well-run and efficient business. In
my view, it has acquired	a not Insignificant reputatlon, which

has attached to the name "Caboolture motel".

The question is one of impression and of fact and

degree, and regard must be had to the relevant section of the

public which, f o r present purposes, consists of those people who

are likely to require, or might want, accommodation, of a motel

kind, in and around the district of Caboolture. The question is whether they are likely to be misled or deceived by the first respondent's conduct in using the name, "Caboolture Hotel Motor

Inn".

In Burswood Management Ltd. v. Burswood Casino

Motel/Hotel Pty.Ltd. (1985) 7 F.C.R. 186, Toohey J . succinctly

summarised the law and then went on to comment on the difficulty

involved in the use of descriptive words. He said, at p.190:-

"Conduct infringes s.52 of the Trade Practices Act
if it is misleadinq or deceptive or is likely to
mislead or deceive, This is-a question of fact to

be determined by the court; it is unnecessary to

prove that the conduct In question actually

deceived or misled anyone: Park'dale Custom Built

Furniture Pty.Ltd. v. Puxu Pty.Ltd. (1982) 144

C.L.R. 191 at 198. The class of consumers who may be misled in the present case is very much the

public at large, having regard to the impact of

newspaper advertlsing. The lntention of the

respondents is not relevant; the question is

whether their conduct was misleading or deceptlve

or likely to mislead or deceive: Hornsby Buildlnq

Information Centre Pty.Ltd.	v.	Sydney Buildinq
Information Centre Ltd. (19/	8 ) 1 0	C.L.R. 216 at

m. An applicant for relief must be associated,	in the minds of members of the public or the
relevant section, with a particular name or
product otherwise conduct is not likely to mislead
or deceive: Dairy Vale Metro Co-operative Ltd. v.
Brownes D a i r v d m v A.L.R. 494; Taco Co.
of Australia Inc. v. Taco Bell Pty.Ltd. (n
A.L.R. 117. conduct which merely causes
uncertainty in the minds of relevant members of
the public does not contravene S . 52: Parkdale.
Conduct is not misleading or deceptive unless it contains or conveys a misrepresentation: Taco.
If a name is no more than merely descriptive of a
particular type of business, its use by others who
carry on the same type of business does not
deceive or mislead as to the nature of the
business described: Hornspy at 230. But a name
may be more than descrlptlve: it may relate to a
commercial activity of the applicant or be
associated in the minds of members of the public with that activity and in that regard mislead."

In my opinion there are various categories of persons who are likely to be misled or deceived by the first respondent's use of the name "Caboolture Hotel Motor Inn". One of those categories would include those who had learned of the "Caboolture Motel" from the personal recommendation of others. If the

persons who received that recommendation were travelling past the

least some who would not only be confused or uncertain as to
whether that was the establishment recommended to them, but would
also believe that that was the place recommended. Caboolture is
a small district with a small population and, for at least some
of this category of persons, in my opinion it would make no
difference whether the property were called the "Caboolture Hotel
Motel", the "Caboolture Hotel-Motel Inn", or the "Caboolture

respondents' "Caboolture Hotel Motor Inn", there would be at a person had in fact been booked at the "Caboolture Motel" but stayed (apparently quite happily) at the "Caboolture Hotel Hotel", is but an illustration of the deception llkely from the

similarity of names.

I think the physical differences between the two

businesses and their buildings would be sufficient to prevent persons who had patronised one or the other from being misled or deceived into thinking that the other business was the one at which they had stayed. I think that persons who had not previously stayed at either place and who had heard of, read of,

or been recommended to the "Caboolture Motel", might, on seeing a

business described as the Caboolture Hotel Motor Inn, be misled
into thinking that that was the business that they had been told

about or had read about.

One has to recognise that it will not be on every

occasion that the Caboolture Hotel Motor Inn will be so

compendiously described. But here the primary word is

"Caboolture". For many years the motel of the applicants was the

only business in or near Caboolture offering motel type

accommodation. It still is the only motel in Caboolture. Given

the nature of the locality and its population, one ordinarily

would not expect two Caboolture Motels. The use of the name

"Caboolture Hotel Motor Inn" has only very recently been adopted.

In Bridges v. Bridge Stockbrokers Ltd. (1984) 4 F.C.R.

21, Sheppard J. at first instance was concerned with stockbroking

businesses named "Bridges, Son h Shepherd" and "Bridge

Stockbrokers Ltd.". There his Honour was not concerned with

descriptive or geographical words, which is the cause of the real

difficulties in this case. In concluding that the applicants

were entitled to relief, he noted at p . 3 6 : -

"Neither of the names in question is descriptive of

the business of either undertaking. It is true

that the company uses the word "Stockbrokers" but

the word in question is "Bridge". It is the use

of that word which may mislead members of the

aublic. It follows that this case is different

c - - - - -	~
from cases such	as Hornsby Building Information

Centre Pty. Ltd. v. Sydney Building Information

Centre Ltd.(19i8) 140 C.L.R. 216 and Motorchar e

d descriptive

of the businesses carrikd on by the parties in

those cases. It is well recognised that the task

of an applicant for relief in a case where the

name in question is descriptive of the business
carried on is more difficult than it may be in

other cases."

Implicit in those observations is the conclusion that the task

where descriptive words are used is not necessarily impossible.

Shepperd J. observed, at p.37:-

"Although the names 'Bridges, Son & Shepherd' and

'Bridge Stockbrokers Ltd.' are apparently

different when used in juxtaposition, people

encountering one or other of them may not find

them so different. That, in my opinion, applied

not only to members of the public lacking

familiarity with the stockbroking industry, but

also to those engaged in it."

A similar observation may be made in the present case. The names

"Caboolture Motel" and "Caboolture Hotel Motor Inn" are

apparently different when used in juxtapositlon, but people

encountering one or other of them may not flnd them so different,

and information obtained by reading accommodation guides, or from
oral recommendations by others, is frequently only imperfectly

recollected.

When Bridges went on appeal, (1984) 4 F.C.R. 460,

Smithers and Woodward JJ. noted at p.468:-

"If one choses a name so close to that of an

operator already in the business that confusion is

probable, there will be a recurring need in normal

business for care and discrimination. Where the

name of that party is such as, in various

circumstances, to carry additional overtones, then

one is entering the area of misrepresentation.

The overtones in this name are that, in the

stockbroking business, you will find "Bridge" or

"Bridges" here and not elsewhere. To throw that

into the public arena, where there are people with

no duty or inclination to exercise a fine

discrimination in the matter, nor any feeling of

necessity for so doing, creates a likelihood of it

being understood as saying what it seems to say.
Such persons would be unlikely to expect that the
company would claim to be the "Bridge" of the
stockbroking world unless it was claiming also to

be "Bridges".

Their Honours went on to note, at the same page:-

"[the learned primary judge] ... was requiredto, and

did, direct his mind to the assessment of the
degree of probability that relevant persons might
by reason of the trading by the company in the
name 'Bridge Stockbrokers Limited' be led into
error, and to the numerical strength of that body
of persons. It was his decision that significant
numbers of the public who in various capacities
have occasion to deal with stockbrokers are likely

to be misled or deceived (not merely confused) by

the company's conduct in using the 'Bridge' name.

In our opinion the learned judge had before hlm circumstances from which the inference he drew might properly be drawn.

In the course of his judgment, his Honour said

that he had 'given the matter a good deal of

anxious consideration' and engaged in 'a not

insubstantial judgmental exercise'. He stressed

that, in the end, 'The matter must be one of

impression. It is a question of fact and degree.'

The case does seem to fall very close to the

borderline between conduct which is misleading and

deceptive within the meaning of the Act and

conduct which is merely confusing.

We have felt the same doubts which troubled his

Honour but, at the end of the day, we flnd

ourselves in agreement with the conclusion which

he reached.

I confess, in the circumstances of this case, to a

similar anxiety but, in the end, am satisfied that there is	a
serious question to be tried as to whether the conduct is not
merely confusing but is conduct which is likely to mislead	or
deceive, contrary to the Act.

The second ground on which it was suggested that the use

of the name "Caboolture Hotel Motor Inn" is misleading or

deceptive contrary to s.52 of the Act, was that it would mislead

people into believing that the hotel-motel was in Caboolture,

whereas, in fact, it is a short distance, about 200 metres,

outside the boundary of Caboolture, in Morayfield. Shortly put,
the choice of the primary descriptive word "Caboolture" in the
name is misleading because, in fact, the hotel-motel complex is

not in Caboolture.

The Caboolture/Morayfield boundary some is 1.5

kilometres from the business premises of the applicant, and it is

not	impossible	to	imagine	that,	with	further	development,
Morayfield	reasonably	might	be	regarded	as	a suburb	of

Caboolture. However, the suggestlon was that, if a person were

to make a reservation based on the name "Caboolture Hotel Motor

Inn", they would find themselves outside Caboolture, and some	1.5
km.	from the centre of Caboolture.

If this were the sole basis of the appllcation, I would

not grant interlocutory rellef.	In my vlew, the mlsdescription
as to locality is de minimis.

In the entirety of the matter, however, it does have

some significance. In this case, I have had to consider words

that ace not fancy or invented, but are descriptive or

geographic. I have used the phrase "descriptive or geographic"

here and earlier, rather than simply "descriptive", because, while frequently a geographical word is descriptive of a connection between the business and the place where it is conducted, it is not precisely accurate to label the word "Caboolture" as descriptive of the hotel-motel business of the first respondents.

The primary submission of the respondents was confined

to the name "Caboolture Hotel Motor Inn", although it was made plain that no concession was made that, in particular, the use of "Caboolture Hotel Motel" would constitute misleading or deceptive conduct.

In Office Cleaning Services Ld. v. Westminster Window

and General Cleaners Ld. (1946) 63 R.P.C. 39, (which was a

passing off case), Lord Simonds sald, at p.43:-

"So long as descriptive words are used by two

traders as part of their respectlve trade names, it is possible that some members of the public will be confused whatever the differentiating words may be...in Turton v. Turton (42 Ch. D.128) the possibility of-ers b y p u b l i c was held not to disentitle the defendant from trading in his own name though the plaintiff had long traded

to no more than this, that where a trader adopts	in the same name. It comes in the end, I thlnk,
words in common use for his trade name, some risk of confusion is inevitable. But that risk must be run unless the flrst user is allowed unfairly to monopolise the words. The Court will accept comparatively small differences as sufficient to
avert confusion. A greater degree of
discrimination may fairly be expected from the public where a trade name consists wholly or in part of words descriptive of the articles to be sold or the servlces to be rendered."

This passage was referred to, with approval, by Stephen J. in Hornsby Building Information Centre Pty. Ltd. v. Sydney Building

Information Centre Ltd. (1978) 140 C.L.R. 216 at p.229, where he

said :  -

"There is a price to be paid for the advantages

flowing from the possession of an eloquently descriptive trade name. Because it is descriptive it is equally applicable to any business of a like kind, its very descriptiveness ensures that it is not distinctive of any particular business and hence its application to other like businesses will not ordinarily mislead the public."

And later,

"The risk of confusion must be accepted, to do otherwise is to give to one who appropriates to himself descriptive words an unfair monopoly in those words and might even deter others from pursuing the occupation which the words describe."

Here, however, I am satisfied there is an established secondary meaning for the	geographically descriptive name of the
applicants' business.

It was submitted by the respondent that the use of the

word "hotel" describes a different kind of establishment and it	was sald that the differences in descriptive words used was
sufficient to avert confusron. A difficulty, however, is that the principal descriptive word, "Caboolture", is not accurate. I do not think that slight differences concerning geographically descriptive words has anything like the same weight where one of the descriptive words is not in fact descriptive of the locality of the business.

L

. 17.

I am satisfied that the applicants have established a serious question to be tried as to whether the conduct of the

respondents amounts to conduct contrary to s.52 of the - Trade

Practices Act 1974. I am very conscious of the consideration

that in many cases of	interlocutory applications such as this, in
a practical sense, the granting or refusal	of interlocutory

relief is decisive. I have therefore looked at the applicants' case for interlocutory relief carefully and, it must be said, with some anxiety.

However, the mere fact that the name under which the

business of the motel has been conducted for many years is a

combination of a geographic description of the place at which the

business is conducted and a word descriptive of the nature of the

business does not mean that it is without a remedy to protect the

goodwill attaching to that business. What it does mean is that one has to carefully analyse whether, in fact, conduct which is claimed to mislead or deceive, or which is said to be likely to mislead, really can be said to have that consequence.

As to the balance of convenience, Toohey J. in Burswood Management Ltd. v. Burswood Casino Motel/Hotel Pty.Ltd. (supra)

noted at p.193:-

"...if,	as I hold, the use of the name Burswood
Casino Motel/Hotel Pty.Ltd.	is in breach of the

Act, an assessment at a later stage of loss

suffered by the applicants by the	use of that name
presents great difficulties."

In my opinion a similar consideration obtains in the

.

. 18.

present circumstances. The damage, including damage to the

goodwill of the applicants, up to trial of the action would be
very difficult to assess. The inconvenience and expense to the

respondents in granting interlocutory relief to the applicants is

not, on the evidence, by any means high. Nr. Bennie deposes

that, if the name was required to be changed again, circulars
would have to be sent out to regular customers of the motel
units, and to advertising publications such as "Jasons", which is
an accommodation guide, and the Caboolture and Shire Gazette with

the Queensland Government Tourist Bureau would have to be amended

accordingly. Also, signs would have to be removed, and

stationery and other printed material would have to be amended.

The business has been operating under the name "Caboolture Hotel

Motor Inn" for only a short period. The first respondent did not

change the name to "Caboolture Hotel" as was indicated to be the

intention in the letter of	9 March	1988, but chose to adopt
"Caboolture Hotel Notor Inn".

In my view, the consideration of where the balance of

convenience falls favours the grant of the interlocutory rellef

sought, on the usual undertaking as to damages.

I will hear the parties on costs. I certlfy that this and the p;cdc*g

pages are a true copy of the reasons	f e r
judgment herein of His Honour
Mr. Justice Spender

Counsel for applicant:  Mr. B.D. O'Donnell

instructed by:  Marshal1 & L'Estranqe

Counsel for respondent:  Mr. P.D.T. Appleqarth

instructed by:  Catt Smith

Date of Hearinq:	1 June 1988
Date of Judment:	22 June 1988