B. & S. v Irish Auto Trader Ltd

JurisdictionIreland
Judgment Date14 March 1995
Date14 March 1995
Docket Number[1995 No. 1504P]
CourtHigh Court
B. & S. Ltd. v. Irish Auto Trader Ltd.
B. & S. Limited
Plaintiff
and
Irish Auto Trader Limited, Defendant
[1995 No. 1504P]

High Court

Injunction - Interlocutory injunction - Principles on which interlocutory injunction to be refused - Presentation or alteration of the status quo - Balance of convenience - Passing off - Action - Sale of advertising magazines.

The plaintiff had for some years published, in Ireland, a magazine called "Buy and Sell" which consisted of advertisements for the sale and purchase of various items, including motor vehicles and accessories. It accepted advertisements from traders subject to a charge and from private advertisers without charge. Since February, 1994, the cover page of the magazine had carried the words "including Autotrader" and the heading "Autotrader" appeared over the motor section and "Autotrader" was promoted on the back page.

The defendant had for 10 years published in the United Kingdom a magazine devoted to advertising the sale and purchase of motor vehicles and accessories under the name "Auto Trader". It charged for all of its advertisements.

A considerable amount of advertising in both publications came from motor traders.

In February, 1995, the defendant launched an all Ireland magazine dedicated to advertisements for motor vehicles and accessories called "Irish Auto Trader".

The plaintiff commenced proceedings for passing off and sought an interlocutory injunction restraining the defendant from publishing or distributing its magazine within the jurisdiction or from passing off its magazine as that of the plaintiff.

Held by McCarcken J., in refusing the application, 1, that there was a serious issue to be tried as to whether the defendant was passing off its magazine for that of the plaintiff.

Erven Warnink B.V. v. J. Townsend and Sons (Hull) [1979] A.C. 731 considered.

2. That damages was not an adequate remedy for either party.

3. That while ordinarily, in a case where damages was not an adequate remedy, the court would maintain the status quo, in the instant case the defendant was actingbona fide in extending an established business in Great Britain and it was likely that any confusion between the parties' publications would be minimal.

American Cyanamid v. Ethicon Ltd. [1975] A.C. 396 considered.

Semble: That the entire test to be applied in determining whether an interlocutory injunction ought to be granted was the balance of convenience: the adequacy of damages being only an important, often decisive, element in that test.

American Cyanamid v. Ethicon Ltd. [1975] A.C. 396 considered.

Cases mentioned in this report:—

Erven Warnink B.V. v. J. Townsend and Sons (Hull) (1979) A.C. 731; [1979] 3 W.L.R. 68; [1979] 2 All E.R. 927; [1980] R.P.C. 31; 123 S.J. 472 H.L.

American Cyanamid v. Ethicon Ltd. (1975) A.C. 396; [1975] 2 W.L.R. 316; [1975] 1 All E.R. 504; [1975] R.P.C. 513; 119 S.L. 116; [1975] F.S.R. 101 H.L.

Proceedings.

A plenary summons was issued on the 28th February, 1995. On the same date the plaintiff sought and obtained an ex parte interim injunction against the defendant. By notice of motion dated the 28th February, 1995, the plaintiff sought an interlocutory injunction against the defendant.

The motion was heard by the High Court (McCracken J.) on the 6th and 8th March, 1995.

Cur. adv. vult.

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