Tao Ti Co Pty Limited v A & T Evergood Pty Limited

[2003] FCA 1509

FEDERAL COURT OF AUSTRALIA

Tao Ti Co Pty Limited v A & T Evergood Pty Limited [2003] FCA 1509

TAO TI CO PTY LIMITED (ACN 075 542 915) v A & T EVERGOOD PTY LTD (ACN 085 909 342)
N 1513 OF 2003

ALLSOP J
9 DECEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1513 of 2003

BETWEEN:

TAO TI CO PTY LIMITED
(ACN 075 542 915)
APPLICANT

AND:

A & T EVERGOOD PTY LIMITED

(ACN 085 909 342)

RESPONDENT

JUDGE:

ALLSOP J

DATE OF ORDER:

9 DECEMBER 2003

WHERE MADE:

SYDNEY

THE COURT:

1.DECLARES THAT the respondent has infringed trade mark no 670405.

2.ORDERS THAT the respondent by itself, its servants or agents or otherwise be restrained from using as a trade mark the mark and image of registered trade mark No 670405, being the mark and image annexed hereto.

DIRECTS THAT:

3.the applicant file and serve any evidence and submissions on costs on or before 12 December 2003;

4.the respondent file and serve any evidence and submissions on costs by Friday the 19 December 2003; 

5.the applicant file any evidence and submissions on or before 23 December 2003;

6.any party wishing to cross-examine another party will need to inform the Associate to Allsop J no later than 4.00 pm on 24 December; and

7.the applicant notify the respondent of the orders made today and that if an application to set aside these orders is made, that application is to be made on notice and with affidavit material in support on or before 19 December 2003.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Annexure “A”

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1513 of 2003

BETWEEN:

TAO TI CO PTY LIMITED
(ACN 075 542 915)
APPLICANT

AND:

A & T EVERGOOD PTY LIMITED

(ACN 085 909 342)

RESPONDENT

JUDGE:	ALLSOP J
DATE:	9 DECEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant seeks by application filed on 8 October 2003 declaratory and injunctive relief in relation to a trade mark on its goods.  The trade mark is two Chinese characters which in English expression is “Tao-Ti”. 

2. I have before me an application for judgment.  The respondent has been served with all relevant process.  It has been told that judgment will be sought today.  The respondent has not appeared on a number of occasions although has appeared on some occasions.  No sensible defence has ever been identified or articulated.  The Court has received an affidavit from a Mr Cheung sworn 4 December 2003 which seems to indicate that the respondent recognises that it has no defence.

3. This morning I granted leave to file a notice of motion in Court dated 9 December 2003 which sought four orders including declaratory relief and an order.  I have read the affidavit of Hang Yi Li sworn 8 December 2003 and the exhibits to that affidavit have been admitted into evidence. 

4. Mr Lee, solicitor for the applicant, also gave evidence as to the meaning of the word and the face of the bottles which would make clear that the infringing bottles using the absolutely identical trade mark in Chinese characters are used as a trade mark of the green tea bottles. 

5. In these circumstances I am prepared to make a declaration in terms of Order 2 of the Federal Court Rules and an order in terms of Order 3 of the Federal Court Rules as sought in the notice of motion. 

6. I direct that the applicant file and serve any evidence and submissions on costs on or before 12 December 2003. 

7. I order that the respondent file and serve any evidence and submissions on costs by Friday 19 December 2003.  The applicant is to file any evidence and submissions on or before 23 December 2003.

8. Thereafter unless I am notified by either of the parties I will deal with the question of costs on the papers.  If any party wishes to cross-examine another party I will need to be informed no later than 4.00 pm on 24 December 2003.  In that eventuality I will re-list the matter next year for the hearing of that costs application.  If there is no desire to cross-examine any party or to have the matter re-listed for argument I will deal with the order for costs on the papers during the Christmas vacation and deliver judgment when convenient early next year.

9. I direct the applicant to notify the respondent of the orders I have made today and that if there is any application to set aside these orders, that application is to be made on notice and with affidavit material in support on or before 19 December 2003.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:
Dated:            18 December 2003

Counsel for the Applicant:	A J O’Brien
Solicitor for the Applicant:	Thomas Chang & Co
No appearance by or for the Respondent.
Date of Hearing:	9 December 2003
Date of Judgment:	9 December 2003