Fire Containment Pty Ltd v Robins

EX TEMPORE Judgment 1This matter was set down before me for a 5-day hearing commencing today on 16 November 2010. On 1 June 2011 the solicitors for the Defendants wrote to the solicitors for the Plaintiff making an offer in these terms: "By consent and without admission: The Court Notes:

1. The Defendants do all things necessary to relinquish the use of the name "Trafalgar" on the following terms and conditions: a. From the date of these orders, and subject to condition 1(f) herein, the Defendants will cease using the word "Trafalgar" in the operation of its business, except where necessary to accord legally with the former name of our business, (eg. legal or financial reporting, or dealing with debtors), or unless required to do so by reason of any agency agreement entered into with the Defendants as agent; b. From the date of these orders, and subject to condition 1(f) herein, the Defendant's undertake to discontinue using the Defendant's "Trafalgar logo" being Schedule 1 to the Summons filed in these proceedings ("the Defendants' Trafalgar logo"); c. From the date of these orders, and subject to condition 1(f) herein, the Defendants undertake to cease using any current trademark applications involving the name "Trafalgar", including those that are still being processed; d. From the date of these orders, and subject to condition 1(f) herein, the Defendants on their own account undertake to refrain permanently from applying for or registering any Business Name, Company Name, Trade Mark or any other form of intellectual property right which incorporates the name "Trafalgar", unless required to by reason of any agency agreement entered into with the Defendants as agent; e. From the date of these orders, and subject to condition 1(f) herein, the Defendants on their account undertake to cease representing that they have purchased or that they are in any way affiliated with the business formally known as "Trafalgar Building Products"; f. Within 2 months from the date of these orders, the Defendants undertake to cease distributing all written or electronic material including letterhead, business cards, or promotional or advertising material or pricing guides which incorporate the "Trafalgar" name or the Defendant's Trafalgar logo as referred to in 1(b) above; g. From the date of these orders, and subject to condition 1(f) herein, the Defendants undertake to sell down current stock which includes the "Trafalgar" name and the Defendants' Trafalgar logo; h. From the date of these orders, and subject to condition 1(f) herein, the Defendants undertake from the date of these orders not to order or purchase any further products which bear the "Trafalgar" name, or the Defendants' "Trafalgar" logo; i. The above undertaking shall apply and extend only to the Defendants, their employees and their agents.