The Federal Court of Australia has found that the use of “SENSES DIRECT” was deceptively similar to an applicant’s earlier registered “SENSIS” trade marks. Sensis Pty Ltd v Senses Direct Mail and Fulfillment Pty Ltd  FCA 719 concerned the Australian marketing and advertising business, Sensis (Applicant), who brought a claim for trade mark infringement against Senses Direct Mail and Fulfillment (Respondent), a direct mail services business. The Respondent cross-claimed on the grounds of non-use, arguing for the removal of SENSIS from the Trade Mark Register in relation to certain class 35 services.Read More
In a recent appeal decision in China, the international sportswear brand New Balance has unsuccessfully challenged a finding of trade mark infringement with respect to a Chinese language equivalent for NEW BALANCE. However, New Balance was able to reduce the amount payable as a result of its infringement by 95%.
Additional Damages for Past Trade Mark Infringements
In June 2014 the Federal Court made its first award of additional damages for trade mark infringement under the ‘Raising the Bar’ amendments to the Trade Marks Act 1995 (TM Act). We reported on the original judgment in our 23 June 2014 alert, which you can find here.
Today, the Federal Court of Australia handed down another judgment in that case. This second judgement suggests that additional damages may also be available for trade mark infringements that occurred before 15 April 2013.
Additional Damages Awarded for Trade Mark Infringement
Trade mark owners can take encouragement from the Federal Court of Australia’s readiness to award additional damages as a deterrent from further infringement. The Court made its first award of additional damages for trade mark infringement in a case about kebabs, where a claim for actual loss from an infringement could not be made. Additional damages are a useful weapon in a brand owner’s arsenal. Read More