This is an application for urgent interlocutory injunctive and ancillary relief made by the applicants in this proceeding. By that interlocutory application, the applicants seek to restrain conduct which they contend constitutes an infringement of two registered trade marks, misleading or deceptive conduct or conduct that is likely to mislead or deceive, in contravention of s 18 of the Australian Consumer Law, and passing off.
The subject matter of the proceeding concerns trade marks used by one or other of the applicants in respect of the sale by them of a fruit called finger lime. A finger lime is a citrus fruit which is about the size and shape of a small zucchini. Its outer skin can be green, brown, yellow or red. Its pulp varies in colour from yellow to pink.
The applicants’ complaint is that the respondents have, in respect of a product which the applicants contend is the same as, or very similar to, the finger limes which they sell, used words and images which are substantially identical to or deceptively similar to the registered trade marks. It is obvious that the trade marks used by the respondents are not substantially identical to the first applicant’s registered trade marks. The real question which arises in the applicants’ trade mark infringement case is whether the respondents’ trade marks are deceptively similar to one or other of the first applicant’s registered trade marks.
The applicants first approached a Registrar of the Court in the afternoon of Thursday, 5 January 2012 ex parte and sought a listing before the Duty Judge on Friday, 6 January 2012. After some discussion between the solicitor for the applicants and the Duty Registrar, the Registry accepted the applicants’ documents for filing and listed the proceeding before me, as Duty Judge, yesterday (Monday, 9 January 2012) for consideration by me at that time. No orders were made last week. The solicitor for the applicants was informed by the Duty Registrar that, when the matter came before the Duty Judge on 9 January 2012, the applicants would have to persuade the Court that the application which they wished to make was urgent and should be dealt with accordingly.
The matter was listed before me at 10.15 am yesterday. On that occasion, the respondents were represented by their solicitor.
When the matter was called on, the respondents’ solicitor submitted that I should not deal with the matter at all because it was not urgent. He also submitted that I should not deal with the matter because there had been no orders made by a judge or a registrar abridging the time for service of the applicants’ Application and that the proceeding should simply fall to be dealt with in the ordinary way.
I ruled against these submissions and decided that I would deal with the applicants’ interlocutory application yesterday.
Accordingly, the interlocutory application made by the applicants was heard yesterday. These Reasons for Judgment determine that application…
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