ANNEXURE "A"
ANNEXURE "B"
ANNEXURE "C"
ANNEXURE "D"
ANNEXURE "E"
FEDERAL
COURT OF AUSTRALIA
Louis Vuitton Malletier S A v D & L Design Pty Ltd [2003] FCA 475
TRADE MARKS - application for summary judgment - infringement action pursuant to s 120 Trade Marks Act 1995 (Cth) - infringing conduct admitted -- respondent companies offering for sale and selling handbags bearing marks which were substantially identical with, or deceptively similar to, the applicants' registered trade marks - whether declarations and injunctions should be granted.
TRADE PRACTICES - misleading and deceptive conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth) - false representations in contravention of s 53(c) of the Trade Practices Act 1974 (Cth) - contravening conduct admitted - respondent companies offering for sale and selling handbags bearing marks or styles which were substantially identical with, or deceptively similar to, the applicants' registered trade marks and unregistered marks or styles with which the applicants had come to be associated.
TORT - passing off - contravening conduct admitted - respondent companies offering for sale and selling handbags bearing marks or styles which were substantially identical with, or deceptively similar to, the applicants' registered trade marks and unregistered marks or styles with which the applicants had come to be associated - no direct evidence of loss or damage suffered by applicants but probability that loss and damage occurred.
Trade Marks Act 1995 (Cth): s 120
Trade Practices Act 1974 (Cth): ss 52 and 53(c)
Pinky's Pizza Ribs on the Run Pty Ltd v Pinky's Seymour Pizza & Pasta Pty Ltd [1997] ATPR 41‑600, referred to
Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177, referred to
LOUIS VUITTON MALLETIER S A & ORS v D & L DESIGN PTY LTD
V 522 of 2002
GOLDBERG J
16 MAY 2003
MELBOURNE
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
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BETWEEN: |
LOUIS VUITTON MALLETIER S A First Applicant CHRISTIAN DIOR COUTURE Second Applicant FENDI ADELE SRL Third Applicant |
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AND: |
D & L DESIGN PTY LTD First Respondent RED BERRY ENTERPRISE PTY LTD Second Respondent HOT CHILLI GROUP PTY LTD Third Respondent |
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DATE OF ORDER: |
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WHERE MADE: |
THE
COURT ORDERS THAT:
1. There be summary judgment for the applicants pursuant to O 20 r 1 of the Federal Court Rules in the terms of the declarations and orders hereinafter set out.
THE
COURT DECLARES THAT:
2. The first and third respondents have infringed Australian Registered Trade Mark No 729025 ("the Damier trade mark"), have engaged in misleading and deceptive conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth) ("the TPA") and made misrepresentations in contravention of s 53(c) of the TPA by the use of the Damier trade mark and have passed off handbags bearing the Damier trade mark as and for handbags manufactured by or under the authority of the first applicant.
3. The first and third respondents have engaged in misleading and deceptive conduct in contravention of s 52 of the TPA and made misrepresentations in contravention of s 53(c) of the TPA by offering for sale and selling handbags displaying what is described in par 8 of the statement of claim filed herein on 13 August 2002 ("the statement of claim") as the first applicant's "Damier Style" of canvas, a representation of which is Annexure "A" to this order and have passed off such handbags as and for handbags manufactured by or under the authority of the first applicant.
4. The first, second and third respondents have engaged in misleading and deceptive conduct in contravention of s 52 of the TPA and made misrepresentations in contravention of s 53(c) of the TPA by offering for sale and selling handbags displaying what is described in par 9 of the statement of claim as the first applicant's "Epi Style" of leather, a representation of which is Annexure "B" to this order and have passed off such handbags as and for handbags manufactured by or under the authority of the first applicant.
5. The first and second respondents have engaged in misleading and deceptive conduct in contravention of s 52 of the TPA and made misrepresentations in contravention of s 53(c) of the TPA by offering for sale and selling handbags bearing what is described in par 10 of the statement of claim as the first applicant's "Monogram Vernis Fleurs Style", a representation of which is Annexure "C" to this order and have passed off such handbags as and for handbags manufactured by or under the authority of the first applicant.
6. The third respondent has infringed Australian Registered Trade Marks Nos 208745, 336090, 641876 and 620002 ("the Christian Dior trade marks"), has engaged in misleading and deceptive conduct in contravention of s 52 of the TPA and made misrepresentations in contravention of s 53(c) of the TPA by its use of the Christian Dior trade marks and has passed off handbags bearing one or more of the Christian Dior trade marks as and for handbags manufactured by or under the authority of the second applicant.
7. The first and second respondents have engaged in misleading and deceptive conduct in contravention of s 52 of the TPA and made misrepresentations in contravention of s 53(c) of the TPA by offering for sale and selling what is described in par 32 of the statement of claim as the second applicant's "Saddle Style" handbag, a representation of which is Annexure "D" to this order and have passed off such handbags as and for handbags manufactured by or under the authority of the second applicant.
8. The third respondent has infringed Australian Registered Trade Marks Nos 303037 and 453492 ("the Fendi trade marks"), has engaged in misleading and deceptive conduct in contravention of s 52 of the TPA and made misrepresentations in contravention of s 53(c) of the TPA by its use of the Fendi trade marks and has passed off handbags bearing one or more of the Fendi trade marks as and for handbags manufactured by or under the authority of the third applicant.
9. The third respondent has engaged in misleading and deceptive conduct in contravention of s 52 of the TPA and made misrepresentations in contravention of s 53(c) of the TPA by offering for sale and selling handbags bearing what is described in par 51 of the statement of claim as the third applicant's "Fendi Style", a representation of which is Annexure "E" to this order and has passed off such handbags as and for handbags manufactured by or under the authority of the third applicant.
THE COURT ORDERS THAT:
In relation to the first applicant's claims:
10. The first and third respondents each be permanently restrained, whether by themselves, their directors, officers, employees or agents or otherwise howsoever, from infringing Australian Registered Trade Mark No 729025.
11. The first and third respondents be permanently restrained whether by themselves, their directors, officers, employees or agents or otherwise howsoever, from using or applying the Damier Style of canvas on handbags without the licence or authority of the first applicant.
12. The first, second and third respondents each be permanently restrained whether by themselves, their directors, officers, employees or agents or otherwise howsoever, from using or applying the Epi Style of leather on handbags without the licence or authority of the first applicant.
13. The first and second respondents be permanently restrained whether by themselves, their directors, officers, employees or agents or otherwise howsoever, from using or applying the Monogram Vernis Fleurs Style on handbags without the licence or authority of the first applicant.
14. The first and third respondents, within 21 days of the date of this order, deliver up on oath to the first applicant, or its nominated agent, for destruction under the supervision of the first applicant or its nominated agent:
(a) all handbags in the possession, power, custody or control of the first and third respondents, or their directors, officers, employees or agents, to which the Damier trade mark has been applied without the licence or authority of the first applicant;
(b) all handbags in the possession, power, custody or control of any of the first and third respondents which incorporate the Damier Style, which has been applied without the licence or authority of the first applicant;
(c) all catalogues, price lists, brochures and other promotional or advertising documents and materials in the possession, power, custody or control of any of the first and third respondents, or their directors, officers, employees or agents, displaying handbags to which the Damier trade mark or Damier Style have been applied without the licence or authority of the first applicant.
15. The first, second and third respondents, within 21 days of the date of this order, each deliver up on oath to the first applicant, or its nominated agent, for destruction under the supervision of the first applicant or its nominated agent:
(a) all handbags in the possession, power, custody or control of any of the first, second or third respondents which incorporate the Epi Style of leather, which has been applied without the licence or authority of the first applicant;
(b) all catalogues, price lists, brochures and other promotional or advertising documents and materials in the possession, power, custody or control of any of the first, second or third respondents, or their directors, officers, employees or agents, displaying handbags to which the Epi Style has been applied without the licence or authority of the first applicant.
16. The first and second respondents, within 21 days of the date of this order, deliver up on oath to the first applicant, or its nominated agent, for destruction under the supervision of the first applicant or its nominated agent:
(a) all handbags in the possession, power, custody or control of the first and second respondents, or their directors, officers, employees or agents, to which the Monogram Vernis Fleurs Style has been applied without the licence or authority of the first applicant;
(b) all catalogues, price lists, brochures and other promotional or advertising documents and materials in the possession, power, custody or control of any of the first and second respondents, or their directors, officers, employees or agents, displaying handbags to which the Monogram Vernis Fleurs Style has been applied without the licence or authority of the first applicant.
17. The first and third respondents each pay the first applicant damages for infringement of the Damier trade mark and for passing off in respect thereof, to be assessed together with interest thereon, or, at the option of the first applicant on a date to be fixed, the first and third respondents account for the profits made by them by the said infringements and passing off and pay to the first applicant the amount found to be due on the taking of such account, together with interest thereon.
18. The first and third respondents each pay to the first applicant damages in respect of their use of the Damier Style of canvas in contravention of s 52 and s 53(c) of the TPA and in passing off, or, at the option of the first applicant on a date to be fixed, the first and third respondents account for the profits made by them by the said passing off and pay to the first applicant the amount found to be due on the taking of such account together with interest thereon.
19. The first, second and third respondents each pay to the first applicant damages in respect of their use of the Epi Style of leather in contravention of s 52 and s 53(c) of the TPA and in passing off, or, at the option of the first applicant on a date to be fixed, the first, second and third respondents account for the profits made by them by the said passing off and pay to the first applicant the amount found to be due on the taking of such account together with interest thereon.
20. The first and second respondents each pay to the first applicant damages in respect of their use of the Monogram Vernis Fleurs Style in contravention of s 52 and s 53(c) of the TPA and in passing off or, at the option of the first applicant on a date to be fixed, the first and second respondents account for the profits made by them by the said passing off and pay to the first applicant the amount found to be due on the taking of such account together with interest thereon.
21. The first and third respondents each provide discovery, verified by affidavit, to the first applicant within 28 days of the date of this order in respect of all documents relating to the purchase, importation, acquisition (on consignment or otherwise) or sale, by the first and third respondents or their directors, employees, servants or agents, of any handbags:
(a) to which the Damier trade mark has been applied; or
(b) which use or incorporate the Damier Style of canvas,
without the licence or authority of the first applicant.
22. The first, second and third respondents each provide discovery, verified by affidavit, to the first applicant within 28 days of the date of this order in respect of all documents relating to the purchase, importation, acquisition (on consignment or otherwise) or sale, by the first, second and third respondents or their directors, employees, servants or agents, of any handbags which use or incorporate the Epi Style of leather without the licence or authority of the first applicant.
23. The first and second respondents each provide discovery, verified by affidavit, to the first applicant within 28 days of the date of this order in respect of all documents relating to the purchase, importation, acquisition (on consignment or otherwise) or sale, by the first and second respondents or their directors, employees, servants or agents, of any handbags which use or incorporate the Monogram Vernis Fleurs Style without the licence or authority of the first applicant.
In relation to the second applicant's claims:
24. The third respondent be permanently restrained whether by itself, its directors, officers, employees or agents or otherwise howsoever, from infringing Australian Registered Trade Mark Nos 208745, 336090, 641876 and 620002.
25. The first and second respondents each be permanently restrained whether by themselves, their directors, officers, employees or agents or otherwise howsoever, from using or applying the Saddle Style on handbags without the licence or authority of the second applicant.
26. The third respondent, within 21 days of the date of this order, deliver up on oath to the second applicant or its nominated agent for destruction under the supervision of the second applicant or its nominated agent:
(a) all handbags in the possession, power, custody or control of the third respondent, or its directors, officers, employees or agents, to which any of the Christian Dior trade marks have been applied without the licence or authority of the second applicant;
(b) all catalogues, price lists, brochures and other promotional or advertising documents and materials in the possession, power, custody or control of the third respondent, or its directors, officers, employees or agents, bearing any of the Christian Dior trade marks without the licence or authority of the second applicant.
27. The first and second respondents, within 21 days of the date of this order, deliver up on oath to the second applicant or its nominated agent for destruction under the supervision of the second applicant or its nominated agent:
(a) all handbags in the possession, power, custody or control of the first and second respondents, or their directors, officers, employees or agents, which incorporate the Saddle Style which has been applied without the licence or authority of the second applicant;
(b) all catalogues, price lists, brochures and other documents and materials in the possession, power, custody or control of the third respondent, or its directors, officers, employees or agents, displaying the Saddle Style without the licence or authority of the second applicant.
28. The third respondent pay the second applicant damages for infringement of the Christian Dior trade marks and for passing off in respect thereof, to be assessed together with interest thereon, or, at the option of the second applicant on a date to be fixed, the third respondent account for the profits made by it by the said infringements and passing off and pay to the second applicant the amount found to be due on the taking of such account, together with interest thereon.
29. The first and second respondents each pay to the second applicant damages in respect of their use of the Saddle Style in contravention of s 52 and s 53(c) of the TPA and in passing off, or, at the option of the second applicant on a date to be fixed, the first and second respondents account for the profits made by them by the said passing off and pay to the second applicant the amount found to be due on the taking of such account together with interest thereon.
30. The third respondent provide discovery, verified by affidavit, to the second applicant within 28 days of the date of this order in respect of all documents relating to the purchase, importation, acquisition (on consignment or otherwise) or sale, by the third respondent or its directors, employees, servants or agents, of any handbags to which the Christian Dior trade marks have been applied without the licence or authority of the second applicant.
31. The first and second respondents each provide discovery, verified by affidavit, to the second applicant within 28 days of the date of this order in respect of all documents relating to the purchase, importation, acquisition (on consignment or otherwise) or sale, by the first and second respondents or their directors, employees, servants or agents, of any handbags which use or incorporate the Saddle Style without the licence or authority of the second applicant.
In relation to the
third applicant's claims:
32. The third respondent be permanently restrained whether by itself, its directors, officers, employees or agents or otherwise howsoever from infringing Australian Registered Trade Marks Nos 303037 and 453492.
33. The third respondent be permanently restrained whether by itself, its directors, officers, employees or agents or otherwise howsoever, from using or applying the Fendi Style on handbags without the licence or authority of the third applicant.
34. The third respondent, within 21 days of the date of this order, deliver up on oath to the third applicant or its duly nominated agents for destruction under the supervision of the third applicant or its nominated agent:
(a) all handbags in the possession, power, custody or control of the third respondent, or its directors, officers, employees or agents, to which any of the Fendi trade marks have been applied without the licence or authority of the third applicant;
(b) all handbags in the possession, power, custody or control of the third respondent, or its directors, officers, employees or agents, which use or incorporate the Fendi Style which has been applied without the licence or authority of the third applicant.
(c) all catalogues, price lists, brochures and other promotional or advertising documents and materials in the possession, power, custody or control of the third respondent, or its directors, officers, employees or agents displaying handbags to which the Fendi trade marks or Fendi Style have been applied without the licence or authority of the third applicant;
35. The third respondent pay the third applicant damages for infringement of the Fendi trade marks and for passing off in respect thereof, to be assessed together with interest thereon, or, at the option of the third applicant on a date to be fixed, the third respondent account for the profits made by it by the said infringements and passing off and pay to the third applicant the amount found to be due on the taking of such account, together with interest thereon.
36. The third respondent pay the third applicant damages in respect of its use of the Fendi Style in contravention of s 52 and s 53(c) of the TPA and in passing off, or, at the option of the third applicant on a date to be fixed, the third respondent account for the profits made by it by the said passing off and pay to the third applicant the amount found to be due on the taking of such account together with interest thereon.
37. The third respondent provide discovery, verified by affidavit, to the third applicant within 28 days of the date of this order in respect of all documents relating to the purchase, importation, acquisition (on consignment or otherwise) or sale, by the third respondent or its directors, employees, servants or agents, of any handbags:
(a) to which the Fendi trade marks have been applied; or
(b) which use or incorporate the Fendi Style,
without the licence or authority of the third applicant.
Other orders:
38. The hearing in relation to the assessment of damages or, alternatively, an account of profits arising from the said infringements and passing off, be adjourned to a date to be fixed by the Court.
39. The respondents pay the applicants' costs of and incidental to the proceeding to be taxed and paid forthwith.
40. Liberty to apply be reserved for further orders for discovery in respect of discovery ordered in pars 21, 22, 23, 30, 31 and 37.
Note: Settlement and entry of orders is dealt with in Order 36 of the
Federal Court Rules
ANNEXURE "A"
ANNEXURE "B"
ANNEXURE "C"
ANNEXURE "D"
ANNEXURE "E"
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
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LOUIS VUITTON MALLETIER S A First Applicant CHRISTIAN DIOR COUTURE Second Applicant Third Applicant |
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AND: |
D & L DESIGN PTY LTD First Respondent RED BERRY ENTERPRISE PTY LTD Second Respondent Third Respondent |
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
1 The applicants allege that the respondents have infringed a number of trade marks, of which the first, second and third applicants are respectively the registered proprietors, in contravention of s 120 of the Trade Marks Act 1995 (Cth). The applicants also claim that the respondents have committed the tort of passing off, and engaged in misleading and deceptive conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth) ("the TPA") and made false representations in contravention of s 53(c) of the TPA by using the registered marks and certain unregistered marks or styles with which the applicants' goods are associated. The conduct of the respondents giving rise to the applicants' claims relates to their offering for sale and selling ladies' handbags. By an amended notice of motion filed 28 November 2002 the applicants seek summary judgment in relation to each of their claims.
2 The first applicant ("Louis Vuitton") and the second applicant ("Christian Dior") are companies incorporated in France. The third applicant ("Fendi") is a company incorporated in Italy. The applicants are each members of worldwide groups of companies, the Australian constituents being Louis Vuitton Australia Pty Ltd, Christian Dior Australia Pty Ltd and Fendi Australia Pty Ltd respectively. These groups carry on a global business of manufacturing and marketing a range of luxury goods, including, inter alia, leather bags, leather travel cases and canvas bags.
3 The respondents are companies incorporated in New South Wales. The first respondent is the beneficial owner of all the issued shares in the second and third respondents. The respondents import manufactured fashion goods from China which they sell by wholesale to the retail market. Handbags form a limited part of the respondents' trade with no more than 100 pieces of any particular style usually being imported.
4 Louis Vuitton is the registered proprietor of Australian Registered Trade Mark No 729025 in class 18 in the following form:
("the Damier trade mark").
5 Louis Vuitton uses a number of unregistered marks or styles, which it says have come to be associated with Louis Vuitton, the name and trade mark "Louis Vuitton" and with the worldwide Louis Vuitton group of companies and its business.
6 The Louis Vuitton group of companies has promoted, marketed and supplied "Damier Style" canvas bags and travel cases throughout the world since at least 1888, and throughout Australia since 1991, under and by reference to the name and trade mark "Louis Vuitton". The Damier Style of canvas displays a design pattern consisting of brown and yellow squares which have a grain effect appearance in the following form:
7 Since 1985 the Louis Vuitton group of companies has manufactured, promoted and supplied throughout the world, including Australia, leather bags incorporating the "Epi Style" of leather:
8 During 1999 and 2000 the Louis Vuitton group of companies has manufactured, promoted and supplied throughout the world, including Australia, leather bags featuring the "Monogram Vernis Fleurs Style":
9 Christian Dior is the registered proprietor of four Australian Registered Trade Marks Nos 208745, 336090, 641876 and 620002 in class 18 in respect of the words "Christian Dior" and "Dior" ("the Christian Dior trade marks").
10 The Christian Dior group of companies has manufactured, promoted and supplied leather bags throughout the world since at least 1947, and throughout Australia since 1970, under and by reference to the name and trade mark "Christian Dior".
11 Christian Dior uses an unregistered style, the "Saddle Style," which it says has come to be associated by the public with Christian Dior, the name and trade mark "Christian Dior" and with the worldwide Christian Dior group of companies and its business. Since at least 2000, the Christian Dior group of companies has manufactured, promoted and supplied leather bags, including caramel coloured leather bags, incorporating the Saddle Style.
12
Fendi is the registered proprietor of two Australian
Registered Trade Marks Nos 303037 and 453492 in class 18 in respect
of the device "
" by
itself and in conjunction with the word "Fendi", in the form "
"
("the Fendi trade marks").
13 The Fendi group of companies has manufactured, promoted and supplied bags throughout the world, including Australia, for many years under and by reference to the name and trade mark "Fendi".
14 Fendi uses an unregistered mark, the "Fendi Style", which it says has come to be associated by the public with Fendi, the name and trade mark "Fendi" and with the worldwide Fendi group of companies and its business. For many years the Fendi group of companies has manufactured, promoted and supplied leather and canvas bags incorporating the Fendi Style.
15 Louis Vuitton alleged that the first and third respondents infringed its Damier trade mark, and made use of its Damier Style on handbags they offered for sale and sold which use was misleading and deceptive and falsely represented that the handbags had Louis Vuitton's sponsorship, approval or an affiliation with Louis Vuitton.
16 On 13 August 2001 a person engaged on behalf of the applicants purchased a handbag from the first respondent's business premises at Shop 1, 8‑24 Kippax Street, Surry Hills, New South Wales ("Shop 1") which appeared to bear the Damier trade mark. On the same day, the purchaser attended the third respondent's business at Shop 2, 26‑44 Kippax Street, Surry Hills, New South Wales ("Shop 2") and saw two handbags which appeared to bear the Damier trade mark. The purchaser was informed by a staff member that a new shipment of these handbags had been received but had not yet been unpacked. On 17 August 2001 the purchaser purchased a handbag from the third respondent's Shop 2 premises. On that occasion, the purchaser saw more than 20 handbags bearing the Damier trade mark. On 23 August 2001 another purchaser on behalf of Louis Vuitton purchased a handbag from the first respondent's business premises at 11 Harper Street, Abbotsford, Victoria ("Abbotsford premises"). On that occasion, the purchaser saw approximately 40 handbags which appeared to bear the Damier trade mark. On 5 June 2002 another purchaser on behalf of the applicants purchased a handbag from the first respondent's Abbotsford premises. On that occasion, the purchaser saw two handbags, including the handbag she purchased, which appeared to bear the Damier trade mark.
17 The four handbags exhibited as being purchased from the first and third respondent's various business premises bore either the Damier trade mark or a mark, sign or device substantially identical with, or deceptively similar to, the Damier trade mark, or incorporated the Damier Style or a style substantially identical with, or deceptively similar to, the Damier Style. There was evidence that they were not made with the licence or authority of Louis Vuitton, and were of an inferior quality to the products of Louis Vuitton.
18 Louis Vuitton alleged that the first, second and third respondents made use of its Epi Style which use was misleading and deceptive and falsely represented that the goods had Louis Vuitton's sponsorship, approval or an affiliation with Louis Vuitton. Louis Vuitton alleged that on 9 August 2001 a handbag was purchased from the first respondent's Shop 1 premises, on 17 August 2001 a handbag was purchased from the third respondent's Shop 2 premises, on 23 August 2001 a handbag was purchased from the second respondent's business premises at 206‑220 Montague Road, West End, Queensland ("West End premises") and that on 4 January 2002 a handbag was purchased from the first respondent's Shop 1 premises. The handbags purchased from the respondents' various business premises were said to incorporate the Epi Style or a style substantially identical with, or deceptively similar to, the Epi Style.
19 Louis Vuitton alleged that the first and second respondents made use of its Monogram Vernis Fleurs Style which use was misleading and deceptive and falsely represented that the handbags had Louis Vuitton's sponsorship, approval or an affiliation with Louis Vuitton. Louis Vuitton alleged that on 23 August 2001 a handbag was purchased from the second respondent's West End premises, and that on 4 January 2002 a handbag was purchased from the first respondent's Shop 1 premises. The handbags purchased from the first and second respondents were said to incorporate the Monogram Vernis Fleurs Style or a style substantially identical with, or deceptively similar to, the Monogram Vernis Fleurs Style.
20 Christian Dior alleged that the third respondent infringed its Christian Dior trade marks. On 14 June 2002 a purchaser engaged on behalf of the applicants purchased a handbag from the third respondent's Shop 2 premises. The handbag bore the Christian Dior trade mark or a mark, sign or device substantially identical with, or deceptively similar to, the Christian Dior trade mark. On that occasion, the purchaser saw approximately 30 handbags in a style similar to the handbag he had purchased, although he was not able to say whether each of those handbags bore a Christian Dior trade mark. There was evidence that the handbag was not made with the licence or authority of Christian Dior and was of an inferior quality to Christian Dior's products.
21 Christian Dior alleged that the first and second respondents made use of its Saddle Style on handbags it offered for sale and sold which use was misleading and deceptive and falsely represented that the handbags had Christian Dior's sponsorship, approval or an affiliation with Christian Dior. On 23 August 2001 a handbag was purchased from the second respondent's West End premises and on 28 August 2001 a handbag was purchased from the first respondent's Abbotsford premises. The two handbags were said to incorporate the Saddle Style or a style substantially identical with, or deceptively similar to, the Saddle Style.
22
Fendi alleged that the third respondent infringed its trade marks,
and made use of its Fendi Style on handbags it offered for sale and sold
which use was misleading and deceptive and falsely represented that the
handbags had Fendi's sponsorship, approval or an affiliation with Fendi. On 14 June 2002 a handbag was purchased
from the third respondent's Shop 2 premises. The handbag bore the "
" trade mark
and incorporated the Fendi Style. On
that occasion the purchaser saw at least 50 handbags that appeared to be
of a similar style to the handbag he purchased and bore the "
"
trade mark. There was
evidence that the handbag was not made with the licence or authority of Fendi
and was of an inferior quality to Fendi's products.
23 By letter dated 30 October 2002 the respondents, with some exceptions to which I shall refer, admitted the allegations in the statement of claim.
24 In summary the respondents admitted:
(a) Incorporation of all parties.
(b) The nature of the business and reputation of each applicant, the products they sold and the reputation and distinctiveness of their products and the products' identification and association with the respective applicant.
(c) The particular reputation and distinctiveness of the following products:
· Louis Vuitton - Damier Style canvas bags and travel cases
Epi Style leather bags
Monogram Vernis Fleurs Style leather bags
· Christian Dior - Saddle Style leather bags
· Fendi - Fendi Style bags.
(d) The registration and subsistence of various trade marks in the names of the respective applicants.
(e) The distribution of handbags which were substantially identical with, or deceptively similar to, the applicants' handbags and bore the applicants' trade marks or marks substantially identical with, or deceptively similar to, those trade marks.
(f) The respondents' acts were calculated to mislead and had misled members of the public into the false belief that the handbags sold by the respondents were manufactured by or under the authority of the applicants and that such acts were calculated to injure and had injured the