State of Escape Accessories Pty Limited v Schwartz (No 2) and in other news…

[2020] FCA 1778

Consumer law – orders for relief – declarations – injunction granted – damages. 

Costs – apportionment of costs

Following its finding that promotional representations relating to its Chuchka bags were misleading or deceptive, the Court made declarations to that effect, permanently restrained the respondents from engaging in such conduct, and ordered that there be an assessment of damages in relation to such conduct. As SOE had been unsuccessful in most of its claim, it was ordered to pay 80 per cent of the respondents’ costs of the proceeding. The Court weighed up a number of factors in coming to this figure. However, this figure principally reflected the fact that SOE’s copyright claim was the main claim it pursued in the proceeding and it failed entirely on this claim. A substantial portion of the evidence and the parties’ written and oral submissions concerned the copyright claim. 

And in other news:  The High Court of Australia ([2020] HCATrans 193) dismissed Kraft Foods’ application for special leave to appeal the Full Court’s decision in Kraft Foods Group Brands LLC v Bega Cheese Limited [2020] FCAFC 65. In short (as it always is) Nettle and Gordon JJ were not persuaded that the Full Court’s construction of the master trademark agreement was attended by sufficient doubt to warrant the grant of special leave, and so the case was not “an appropriate vehicle for consideration of the questions of principle as to the assignability of goodwill that the applicant seeks to agitate”. Accordingly, the Full Court’s decision regarding those questions of principle currently stands, but might be open to consideration by the High Court should an appropriate vehicle come along.

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