Stuart Alexander & Co (Interstate) Pty Ltd v Blenders Pty Ltd

Re: NOSTAC ENTERPRISES PTY. LIMITED and BENSONS TRADING COMPANY PTY. LIMITED
And: NEW CONCEPT IMPORT SERVICES PTY. LIMITED and JOHN VICTOR HUNTER
N.S.W. No. G110 of 1981
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES REGISTRY
GENERAL DIVISION
Ellicott J.

CATCHWORDS

Trade Practices - Consumer protection - misleading and deceptive conduct - Application to restrain - interlocutory relief - Fictitious and fanciful characters on show bags and gift packs sold at shows - whether distinction between "show bags" and "gift packs" - whether conduct misleading or deceptive or likely to mislead or deceive - Right to use "Mr Men" and "Mr Men" characters on show bags granted by licence to applicant under authority of author - whether consent to "Mr Men" name or characters used on gift sets - whether some likely association by public between the product and those responsible for "Mr Men" books and T.V. series - evidence of deception - not necessary to bring action under s.52 to show rights as against respondent or rights at all in relation to subject matter of proceedings - Principles for interlocutory relief - balance of convenience where public interest involved.

Trade Practices Act - (1974) s.52

HEARING

SYDNEY

#DATE 1:9:1981

ORDER

(1) The court, upon the applicant giving to the court the usual undertaking as to damages, orders that the respondents by themselves, their servants and agents and the servants and agents of any of them be restrained until the hearing of the application in this matter or until further order of the court from: -

(i) advertising, displaying, selling, offering for sale show bags, gift packs or gift sets under or in association with any representation of the words "Mr Men" or with any one or more of the likenesses of the drawings of the "Mr Men" characters appearing in exhibits A, B, C and H herein; and

(ii) from procuring or authorising any of the above activities

without, in any such case, first having obtained the written consent thereto of Hanna-Barbera Pty. Limited and first having given to the applicants or their solicitor two days notice in writing of that consent and of the terms of that consent and in the case of selling gift packs or gift sets with such consent at venues where show bags are being sold by other traders without displaying in a prominent position a sign stating - "The gift packs sold at this stall are not show bags and are not sold by us as such."

(2) Liberty to any party to apply on two days notice to the others.

(3) The costs of all parties of these interlocutory proceedings are to be costs in the application.

JUDGE1

In this matter the applicants seek relief against the respondents under s.52 of the Trade Practices Act. That section provides that a corporation shall not in trade or commerce engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

The applicants seek (inter alia) an…