Electrolux Home Products Pty Ltd v Delap Impex KFT  FCA 62 (10 February 2015)
Successful application by Electrolux to restrain Delap and others from advertising, promoting, selling or supplying electrical goods under the trade marks ELECTROLUX and AEG to consumers in Australia, and for Electrolux to file a notice of motion seeking default judgment.
The electrical goods were offered on various .com and .com.au websites controlled by Delap, Mr Andras Paradi or Ms Suzanne Szabo without the authorisation or consent of Electrolux. Delap was a Hungarian company and took no part in the proceedings. It appears the goods were genuine, but were grey goods (parallel imports) not intended for the Australian market.
Farrell J found that Delap had admitted each of the facts alleged in the Statement of Claim in an email sent to the solicitor for Electrolux.
The trade mark infringement claim was not upheld due to a technicality in the pleadings and the court did not consider whether the trade marks were applied to the grey goods with the consent of the registered owner under s123 of the Trade Marks Act. However, her Honour upheld the other claims under the Australian Consumer Law. Delap’s conduct contravened s18 in that it was likely to mislead or deceive consumers into believing that Delap is authorised to use the trade marks, that the electrical goods supplied by Delap are identical to those sold by Electrolux in Australia and that Delap is an authorised reseller or supplier of Electrolux. Furthermore, the warranties supplied by Delap did not comply with the prescribed requirements for warranties against defects under s102, and the goods supplied by Delap did not comply with the relevant safety standard AS/NZS 60335 and contravened s106 (but her Honour did not consider that Electrolux had also established a prima facie case that there was also a misrepresentation by Delap in contravention of s29(1)(a)).
Even though Delap is situated in Hungary, Mr Paradi is resident in Budapest and they conduct business through the offending websites, her Honour granted the injunctions notwithstanding that enforcement may be difficult or even impossible.