Ecopro Cleaning Services Limited v Ecopro Limited

[2018] NZHC 2527

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1869

[2018] NZHC 2527

BETWEEN

ECOPRO CLEANING SERVICES LIMITED
Applicant

AND

ECOPRO LIMITED

First Respondent

AND

MATTHEW JOHN ROURKE

Second Respondent

Hearing:	26 September 2018
Appearances:	J M Skinner and E W Davies for the Applicant No appearance for the Respondents
Judgment:	26 September 2018

JUDGMENT OF PALMER J

This judgment was delivered by me on 26 September 2018 at 3:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors/Party

Skinners Law, Auckland Second respondent in person

ECOPRO CLEANING SERVICES LTD v ECOPRO LTD [2018] NZHC 2527 [26 September 2018]

Proceeding

[1]    On 30 August 2018, Ecopro Cleaning Services Ltd (Ecopro Cleaning) filed this proceeding against Ecopro Ltd (Ecopro) and Mr Matthew Rourke. The causes of action are passing off, misleading or deceptive conduct or statements under the Fair Trading Act 1986 and breach of the Trade Marks Act 2002. Ecopro Cleaning seeks an injunction restraining Ecopro from using the names “Ecopro” or “Ecopro NZ” or any other substantially similar name, requiring the respondents to change its company name and to transfer to the applicant any email address associated with a Facebook account, as well as damages. Ecopro Cleaning also seeks an interim injunction to similar effect as its injunction.

[2]    There are affidavits of service showing the proceeding has been served on the respondents. Neither of the respondents have taken any steps in the proceeding, despite numerous attempts by the applicant to engage with them. No notice of opposition to the application for the interim injunction has been filed. Neither did the respondents turn up to the call of the matter in the list this morning.

Application for interim injunction

[3]    Ecopro Cleaning presses its application for the interim injunction. Mr Skinner, for Ecopro Cleaning, says it appears the respondents have deactivated the Facebook account and are no longer trading but this is not certain.

Decision on interim injunction

[4]    On the basis of the supporting affidavit filed by Ecopro Cleaning, I consider there is a serious question to be tried on the causes of action brought by Ecopro Cleaning. I also consider the balance of convenience favours Ecopro Cleaning. I infer from Ecopro’s failure to take any steps in the proceeding that it either does not oppose it or has decided to live with the consequences of failing to take steps. In that case, the inconvenience to it of the orders sought cannot be significant.

[5]    Accordingly, I make the first of the interim orders sought by Ecopro Cleaning, to restrain the respondents’ use of the name.

[6]    I do not make the other two orders sought. They are mandatory, rather than restraining orders, which require the respondents to take actions. Mandatory orders are rarely granted as interim relief.1 Requiring a party to do something they would not otherwise do does not usually accord with the purpose of preserving the status quo pending a hearing on the application for the interim injunction.2 It is not necessary to preserve the status quo here. Rather, it would deliver to the applicant the result they seek in the injunction itself. If the respondents are indeed no longer trading, and comply with the order restraining their use of the name, the applicant’s position is sufficiently preserved.

Result

[7]    I order that Ecopro Ltd and Mr Rourke are restrained, by themselves or by their servants, agents or anyone on their behalf, from using the names “ECOPRO” or “ECOPRO NZ” or any other name substantially similar.

Palmer J

1      Soft-Tech International Pty Ltd v Ball (1990) 3 PRNZ 683 (HC) at 684; Pilkington v Fidelity Life Assurance Co Ltd HC Wellington CIV-2007-485-2270, 14 April 2010 at [18].

2      Clode v Oliphant [2018] NZHC 1442 at [21]–[23].