A recent decision of the Federal Court, Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd (Accor) (link), reminds litigants of the risks associated with proceeding to trial on all issues, at all costs.

The applicants sued the respondents for infringement of two trade marks and misleading or deceptive conduct in relation to the respondents’ use of the words “Harbour Lights” in connection with an apartment rental business. The respondents cross-claimed for cancellation of the trade marks.

The case was long and hard fought. The applicants alleged 49 infringing uses of the trade marks and 16 misrepresentations. The respondents relied on five grounds of cancellation. The trial took 8 days, and written submissions exceeded 300 pages. The written judgment comprised some 650 paragraphs. On the second day of trial, the parties told the judge that they were unable to settle only because of the costs already incurred.

In the result, the respondents came out better off. One of the trade marks was cancelled in respect of apartment rental services, and the other was cancelled entirely. Only a few of the infringement and misleading claims were made out. The applicants were ordered to pay 40% of the respondents’ costs.

The judge in Accor went out of his way to remind the parties that there are risks associated with “all out” litigation and, unless there are good reasons to do so, litigants should not incur costs to such an extent that they cannot settle even where they can reach agreement on the substantive issues.