Possibly all of it if a class action ensues
Having applied for registration and being aware that it had been refused, it can readily be inferred that the respondents were aware of the likelihood that there was a material impediment to the legitimate use of the respondents’ marks: see, by analogy, Pereira v Director of Public Prosecutions [1988] HCA 57; 82 ALR 217 at 219-220 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ); see also Kural v The Queen [1987] HCA 16; 162 CLR 502 at 505 (Mason CJ, Deane and Dawson JJ); Saad v The Queen [1987] HCA 14; 70 ALR 667 at 669 (Mason CJ, Deane and Dawson JJ).
71 The adverse reports also advised of the options available to overcome the problems with the respondents’ application, including identifying the sorts of evidence required, and pointed out the difficulties in successfully doing so (an extension of time to make such an application was sought and granted, but never acted upon). Having received the adverse reports, the respondents were squarely on notice of the registered priority marks, including the Firstmac Mark, and they were also aware that IP Australia considered that their marks so nearly resembled the earlier registered marks such that using their marks was likely to cause confusion. Due to concerns with other business matters, the respondents chose not to engage with the adverse reports or their findings, including by not seeking legal advice which might have assisted in proving honesty (see the reasoning in relation to good faith by Beach J in Flexopack at [112]). In those circumstances, it was not to the point that a more thorough exploration in cross-examination of the process of conducting internet searches was possible; the cases in which internet searches or other steps had been challenged to a greater extent relied upon by the respondents and addressed by the primary judge were not reasonably capable of being determinative on their own.
(20min delay)