COSTS — where the applicants brought a claim of trade mark infringement against the respondent – where the respondent brought a cross-claim seeking the cancellation of the first applicant’s registered trade mark – where both the applicants’ claim and the respondent’s cross-claim failed – where the cross-claim was only ever defensive – whether the respondent should have its costs of the unsuccessful cross-claim – held: the applicants should pay the respondent’s costs of the claim and the cross-claim on a party and party basis having regard to the fact that the whole proceeding was properly viewed as one event – the costs incurred by the respondent in pursuing its cross-claim were incurred as part of a proportional, reasonable, and integrated response to the applicants’ unsuccessful claim.
COSTS — Calderbank offer – where the respondent made a Calderbank offer before trial – where the offer invited the applicants to discontinue the proceeding and pay 60% of the respondent’s actually incurred costs, in exchange for the respondent discontinuing the cross-claim – held: it was not unreasonable for the applicants not to accept the Calderbank offer – the Calderbank offer hardly constituted a compromise, having regard to its terms, and the defensive nature of the cross-claim – application for indemnity costs refused.
Related cases
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Koninklijke Douwe Egberts BV v Cantarella Bros Pty Ltd (Costs) [2025] FCA 38
COSTS — where the applicants brought a claim of trade mark infringement against the respondent – where the respondent brought a cross-claim seeking the cancellation of the first applicant’s registered trade mark – where both the applicants’ claim and the respondent’s cross-claim failed – where the cross-claim was only ever defensive – whether the respondent…
Original article available at: https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2025/2025fca0038
For more information, see the original judgement.
