Federal Court of Australia

Cargill, Incorporated v Cargill Financial Services International Pty Ltd [2024] FCA 604

ORDERS

THE COURT DECLARES THAT:

1.    The First Respondent has infringed the Applicant’s Cargill Trade Mark no 2126670 under s 120(1) of the Trade Marks Act 1995 (Cth) by using as a trade mark the sign CARGILL FINANCIAL SERVICES INTERNATIONAL PTY LTD, Cargill and or the Cargill logo in relation to services in respect of which the trade mark is registered.

2.    The First Respondent:

(a)    engaged in misleading or deceptive conduct in contravention of section 18 of the Australian Consumer Law (ACL) (being Schedule 2 of the Competition and Consumer Act 2010 (Cth)) by making misleading or deceptive representations that the Respondents’ business is a business of the Applicants; that a payment to the bank account of the First Respondent was a payment to the Third Applicant; and that the Respondents’ services are supplied by, or with the license or approval of, the Applicants; and

(b)    engaged in conduct in contravention of section 36 of the ACL by accepting payment for services that it, at the time of acceptance, did not intend to supply.

3.    The Second Respondent aided, abetted, counselled or procured, or was directly or indirectly knowingly concerned in, or party to:

(a)    the infringement of the Cargill Trade Mark by the First Respondent; and

(b)    the conduct of the First Respondent in contravention of sections 18 and 36 of the ACL.

THE COURT ORDERS THAT:

4.    The First Respondent be restrained, whether by itself or by its servants or agents or howsoever otherwise, from using as a trade mark:

(a)    CARGILL FINANCIAL SERVICES INTERNATIONAL PTY LTD;

(b)    Cargill;

(c)    Cargiii.com (or with its last two letters capitalized); or

(d)    any other sign substantially identical with or deceptively similar to the Cargill Trade Marks.

5.    The First Respondent be permanently restrained, whether by itself or by its servants or agents or howsoever otherwise, from representing to any person that:

(a)    the First Respondents’ business is a business of the Applicants;

(b)    the First Respondents’ business is a business associated with, or authorised or approved by, the Applicants;

(c)    that a payment to the bank account of the First Respondent is a payment to the Third Applicant or any Applicant or any authorized agent thereof;

(d)    that a payment made to a bank account of the First Respondent would reduce the customer’s indebtedness to the Third Applicant or any Applicant; and

(e)    the First Respondents’ services are supplied by, or with the licence or approval of, the Applicants.

6.    The Second Respondent be permanently restrained from aiding, abetting, counselling or procuring, or being directly or indirectly knowingly concerned in, or party to, any of the conduct restrained by the injunctions above.

7.    Mr Geoffrey Farnsworth, as solicitor for the Applicants, be permitted to take steps to effect:

(a)    a change of the name of the First Respondent on the ASIC register to the First Respondent’s ACN followed by Pty Ltd (being 674795754 Pty Ltd);

(b)    a change of the name of the National Australia Bank account numbered 082356726751794 to 674795754 Pty Ltd; and

(c)    a change of the name of the First Respondent on the Australian Business Register to the First Respondent’s ACN followed by Pty Ltd (being 674795754 Pty Ltd).

8.    The Respondents to pay the Applicants’ costs of the proceedings to be assessed upon provision by the solicitor of the Applicants to the chambers of Justice Burley of an appropriate affidavit in accordance with rule 40.02(b) of the Federal Court Rules 2011 (Cth).

9.    The parties have liberty to apply within 28 days of the date of these orders.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BURLEY J:

1    This case concerns what appears to be an internet scam perpetrated by the respondents.

2    The applicants are each related companies within a multinational group that refers to itself as Cargill. They seek final relief against Cargill Financial Services International Pty Ltd and Jeffrey Rajah Latimer for trade mark infringement and misleading and deceptive conduct pursuant to sections 18(1) and 36 of the Australian Consumer Law (ACL) (Schedule 2 of the Competition and Consumer Act 2010 (Cth)).

3    The facts may be briefly summarised. On 3 February 2022, a loan agreement was made between the third applicant and Ecowas Bank for Investment and Development for a substantial sum of money. The first payment was due and made to the correct account held by the third applicant on 30 January 2023. A second payment in the amount of over $10.8 million was due on 12 February 2024. Prior to 5 February 2024, an individual set up a domain address called “cargiii.com” (the rogue address). When the last two letters in the domain are capitalised, they look like “cargill.com”.

4    On 31 January 2024 and 1 February 2024, Antoan Yolovski, an employee of the applicants sent email reminders to Ecowas Bank from the applicants. These appear to have been obtained by unauthorised means, because on 5 and 7 February 2024, various emails were sent purporting to be from Mr Yolovski and bearing the Cargill name on their footer, including the earlier emails, but which were in fact from the rogue address.

5    On 8 February 2024, an email from the rogue address purporting to be from Mr Yolovski provided alternative payment details and attached letters purporting to be from the applicants and the National Australia Bank deploying their official logos and having e-signatures on them. Those emails intimated that the payment was to be directed to the applicants’ Australian bank account and purported to be from a representative of the applicants, with a continuation of the email chain from the 31 January 2024 email.

6    However, the National Australia Bank Account named for payment was in the name of Cargill Financial Services International Pty Ltd, a company unrelated to the applicants which had been incorporated only days before by the second respondent, Mr Latimer. The National Australia Bank Account had also been set up only days before.

7    On about 8 February 2024, Ecowas Bank, thinking that it was following the instructions of the applicants, instigated the payment of the loan amount into the National Australia Bank account of the first respondent. Before the payment was received, the rogue address was discovered and the payment stopped.

8    The applicants wish to have the first respondent’s name changed so as not to resemble their name and for the bank account name to be changed for the same reason. They seek orders to ensure that the name “CARGILL”, which is also a registered trade mark owned by the first applicant, is not again the subject of an unauthorised use in the context of the provision of financial services.

9    The proceedings were commenced on 13 May 2024. Process was served at the registered address of the first respondent and at the address given for Mr Latimer in the ASIC documents for the formation of the first respondent. The evidence indicates that a person answering the door at the address of Mr Latimer had no knowledge of him or the first respondent, despite the fact that the second respondent had registered the same address as the address of the company on 7 February 2024. That is perhaps unsurprising, given the clearly fraudulent use to which the company name and bank account details were put.

10    On 24 May 2024, the proceedings were listed for interlocutory hearing. The respondents did not appear and, after hearing submissions from counsel for the applicants, I made various interlocutory orders restraining the first respondent from representing itself as being a business of or related to the applicants, or from using its name as a trade mark or from using CARGILL or CARGIII.COM, or any sign substantially identical with or deceptively similar thereto.

11    In addition to other orders, I also ordered that the respondents within seven days change the name of the first respondent and the name of any bank accounts held by it. The respondents were given leave to apply to set aside the orders requiring them to change the first respondent’s name within the time set for compliance. Unsurprisingly, neither respondent sought to set the orders aside, nor did they comply with the orders. It is doubtful that Mr Latimer is truly the name of the person responsible for setting up the first respondent. On 24 May 2024, I also directed that the proceedings be listed for hearing on 4 June 2024. The respondents, despite being served, did not appear.

12    The applicants now seek final orders. In support of that application, they rely on evidence going to the service of the 24 May 2024 orders and various affidavits setting out the matters, to which I have referred above. Included in the evidence is a copy of the first applicant’s trade marks, which include the word CARGILL registered in various classes of the trade marks register, including class 36 for credit services, loan financing and instalment loans. I am satisfied that the conduct of the first respondent includes use of the word CARGILL as a trade mark within the scope of that registration. The applicants evidence demonstrates that the first respondent’s conduct has not been authorised by them in any respect.

13    Section 120(1) of the Trade Marks Act 1995 (Cth) provides that a registered trademark is infringed by a person who “uses as a trade mark a sign that is substantially identical with, or deceptively similar to, the trade mark in relation to goods or services in respect of which the trade mark is registered”. The evidence satisfies me that there has been infringement of the word trade mark registered in the name of the first applicant by the first respondent. I am also satisfied that the first respondent has engaged in misleading or deceptive conduct in breach of the provisions of the ACL, including ss 18 and 36, by falsely representing that it is in fact a member of the Cargill group of companies when it is not, and by sending multiple emails and attachments to one of the applicant’s customers in which the respondent sought to accept payment for the reduction of the value of a loan provided by the third applicant that it did not intend to supply and could not be supplied.

14    Furthermore, the second respondent has obtained the registration of the first respondent in the name that falsely appeared on the letter from the rogue address. It may be inferred that he also persuaded the National Australia Bank to open a bank account in that name. I find that he is a person who has joined with the first respondent in the impugned conduct such that he too has engaged in the infringement of trade mark as a joint tortfeasor and has engaged in the misleading or deceptive conduct in breach of section 36 of the ACL.

15    In the circumstances it is appropriate to take the unusual step of making the final orders sought by the applicants restraining their conduct, and also to take out of their hands the tools to commit further misconduct by reference to the name and trade mark of the applicants.

16    I note that each of ASIC and the National Australia Bank have provided letters to the Court indicating that they do not wish to be heard on the application and that they are aware of the substance of the orders sought, which include orders requiring the solicitor for the applicants to take steps to ensure that the names of the respective businesses and bank accounts are changed.

17    Accordingly, I am persuaded that it is appropriate to grant the relief sought.

Associate:

Dated:    7 June 2024