Full Federal Court Upholds Misleading Conduct Ruling Against Financial Services Company

OUTCOME: Dismissed

FEDERAL COURT OF AUSTRALIA

[COMPANY] v [COMPANY] [2017] FCAFC 2 Appeal from: [COMPANY] v [NAME] ([COMPANY] [2016] FCA 229

File numbers: NSD 517 of 2016 NSD 567 of 2016

Judges: [NAME], EDELMAN AND MARKOVIC JJ

Date of judgment: 12 January 2017

Catchwords: TRADE PRACTICES – misleading and deceptive conduct claims under the [NAME] Commission Act 2001 (Cth) – companies engaged in [[COMPANY] – whether business names, domain names and business activities sufficiently similar to be confusing and causative of contravening conduct – distinction between classes of [NAME] – distinction between [NAME] and other [NAME] – occupation of a common field of activity – appeal dismissed TRADE PRACTICES – orders for injunction with disclaimer – appropriateness of unqualified, permanent injunction – appropriate exercise of discretion – appeal dismissed

Legislation: [NAME] [NAME] (Schedule 2 of the [NAME] Act 2010 (Cth)) ss 18, 29 [NAME] Commission Act 2001 (Cth) ss 12DA, 12DB, 12GF

Cases cited: [COMPANY] v [COMPANY] [2015] FCA 882; (2015) 115 IPR 67 [COMPANY] v [NAME] (1984) 4 FCR 460 [NAME] v [NAME] [COMPANY] [2000] HCA 12; (2000) 202 CLR 45 [APPELLANT] [NAME] v [COMPANY] (No 2) [2015] FCAFC 153; (2015) 115 IPR 421 [COMPANY] v [NAME] ([COMPANY] [2016] FCA 229 [NAME] v Percy [2003] [NAME]; (2003) 214 CLR 118 [COMPANY] v [NAME] [COMPANY] [1978] HCA 11; (1978) 140 CLR 216 [COMPANY] v [NAME] [COMPANY] [2001] HCA 13; (2001) 205 CLR 1 [COMPANY] v [NAME]) [COMPANY] [2004] FCA 1394; (2004) 213 ALR 153 [COMPANY] v [COMPANY] (1982) 149 CLR 191 [COMPANY] v McDermott [2016] [NAME]; (2016) 331 ALR 550 [NAME] v [NAME] (1994) ATPR 41-308 [NAME] v [NAME] (Australia) [COMPANY] [1929] [NAME]; (1929) 42 CLR 352

Date of hearing: 17 November 2016

Registry: New South Wales

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: [NAME] Protection

Category: Catchwords

Number of paragraphs: 174

Counsel for [NAME]-Respondents: [redacted]

Solicitor for [NAME]-Respondents: [redacted]

Counsel for the Respondents and Cross-[NAME]: Mr [COUNSEL] [NAME] and Ms [COUNSEL] [NAME]

Solicitor for the Respondents and Cross-[NAME]: [NAME] 517 of 2016

BETWEEN: [COMPANY] (ACN 144 560 172) First Appellant

[COMPANY] (ACN 141 570 952) [NAME] Appellant

[COMPANY] (ACN 154 527 296) (and others named in the Schedule) [NAME] Appellant

AND: [COMPANY] (ACN 108 571 820) First [COMPANY] (ACN [PHONE]) [NAME] Respondent

JUDGES: [RESPONDENT], EDELMAN AND MARKOVIC JJ DATE OF ORDER: 12 January 2017

THE COURT ORDERS THAT:

1. The appeal in NSD 517 of 2016 be dismissed. 2. [NAME] in NSD 517 of 2016 pay the respondents' costs of and incidental to that appeal to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS NSD 567 of 2016

BETWEEN: [COMPANY] (ACN 108 571 820) First [COMPANY] (ACN [PHONE]) [NAME]-Appellant AND: [COMPANY] (ACN 144 560 172) First Cross-Respondent

[COMPANY] (ACN 141 570 952) [NAME]-Respondent

[APPELLANT] [NAME]-Respondent

JUDGES: [RESPONDENT], [RESPONDENT] JJ DATE OF ORDER: 12 january 2017

THE COURT ORDERS THAT:

1. The orders of the [NAME] judge made on 23 March 2016 be varied to add an additional order, order 4(h), that by 10 February 2017 the parties have liberty to apply to a single judge of the Federal Court for orders by consent to vary the terms of orders 4(f) and 4(g).

2. The appeal in NSD 567 of 2016 otherwise be dismissed. 3. [NAME] in NSD 567 of 2016 pay the respondents' costs of and incidental to that appeal to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

[NAME]:

Introduction 1 In these proceedings the nine [NAME] and the [NAME] appellant, Mr [APPELLANT] (as to Appeal NSD 517 of 2016), were the respondents in proceedings before the [NAME] judge ([NAME]) in which the [NAME], [COMPANY] ("[COMPANY]") and [COMPANY] ("[NAME]") (described, together, by the [NAME] judge as "[NAME]"), contended that the [NAME] engaged in misleading or deceptive conduct by using names, as part of their corporate titles, such as [NAME], [COMPANY], [NAME], [NAME], [NAME], [COMPANY] and [NAME] (described, together, by the [NAME] judge as "[NAME]") in the provision of [COMPANY] and products with the result that [NAME] had made representations, in trade or commerce, that they or their services and products were in some way connected with [NAME] and the services and products offered by [NAME]. 2 [NAME] also contended before the [NAME] judge that the [NAME] had engaged in misleading or deceptive conduct by using the mark "[NAME]" and "[NAME]" and "[NAME]" names [NAME], [NAME], [NAME] [NAME], [NAME] and [NAME] as badges of identification and by using particular domain names. 3 The conduct was said to engage contraventions of ss 18 and 29 of the [NAME] [NAME] (the "ACL") contained in Schedule 2 to the [NAME] Act 2010 (Cth) and ss 12DA and 12DB of the [NAME] Commission Act 2001 (Cth) (the "[NAME]"). 4 The [NAME] judge notes that [NAME] abandoned its [NAME] claims against [APPELLANT] (which is now the [NAME] appellant and was [NAME] before [NAME]): [NAME] judge ("[NAME]") at [2]; [RESPONDENT] v [NAME] ([COMPANY] [2016] FCA 229. 5 In the principal proceedings, [NAME] contended that all of the (then) respondents and, in particular, [APPELLANT[COMPANY] and Mr [APPELLANT] were accessories in the conduct contraventions of each of the other respondents (as persons involved in the contraventions for the purposes of s 12GF of the [NAME]) and thus liable to remedial orders in favour of [NAME]. 6 The [NAME] contended that upon proper analysis the scope, focus and character of their activities were so differentiated from those of [NAME] that no likelihood arose of anyone being led into error by [NAME]'s use of the company titles incorporating the words or names described at [1] of these reasons or the titles for [NAME]'s four [NAME] ([2] of these reasons) or by use of the mark "[NAME]" or "[NAME]". 7 All of the respondents before the [NAME] judge are [NAME] in the present proceedings. It is necessary to say something, contextually, about the structure of [NAME] group of companies and their relationship one to the other. The [NAME] judge described that matter at [73], [74] and [77] of [NAME]'s reasons. In the diagram at [73] of [NAME]'s reasons, the reference to "first respondent" and "[NAME] respondent" and so on, corresponds to first appellant and [NAME] appellant and so on in these proceedings (apart from Mr [APPELLANT] who is the [NAME] appellant in these proceedings). At [73], the [NAME] judge set out the following diagram: 8 At [74] and [77], the [NAME] judge notes these matters: [74] It is agreed that there is no relevant distinction, for present purposes, between the [NAME]. The parties were agreed that the [NAME] could be treated as a single entity. The [NAME] respondent is the operating company of [NAME] business, while the first respondent is the responsible entity for that business. The business of [NAME] was established in about 2010 by Mr [APPELLANT], together with Mr [APPELLANT] and Mr [APPELLANT], although it only began trading under that name in around August 2011. [emphasis added] … [77] The following facts seem to be agreed: • The first respondent (CFMA) is the responsible entity that makes offers in [NAME] [NAME] to [NAME]. • The [NAME] respondent (CIA) is the operating company. • The [NAME] and sixth respondents are holding companies and are, in effect, dormant. They do not engage in offers or supplies to [NAME]. They are non-operating holding entities through which the founders of [NAME] invested in [NAME]. The [NAME] respondent has not been used to make any subsequent investments; does not offer, and has not offered, investment products or services to the public; and has not marketed itself to [NAME] or potential [NAME].

Accordingly, the [NAME] respondent has not engaged in any conduct directed at relevant members of the class of [NAME], nor has it made any representations that could mislead or deceive such [NAME]. • [NAME] are wholly owned by CIA. They are dormant and do not engage in any conduct, let alone the relevant conduct. They do not undertake any activities or hold any assets. • The [NAME] respondent is a wholly owned, not-for-profit entity which makes charitable donations that serve to "cleanse" investments made through CFMA and CIA that do not comply with Sharia law, so as to ensure ongoing Sharia compliance; moneys are given through [NAME] to charity. [NAME] does not offer investment products or services to the public and plays no role in determining which [NAME] are provided to it, nor does it have any control over the amount of [NAME] distributed to it. • [NAME], [NAME], is, in effect, a [COMPANY]. It is the corporate incarnation of a [COMPANY] founded in the 1990s by Mr [APPELLANT] under the name "[NAME]", while he was at University. It holds thought leadership and [COMPANY] events on topics of interest to those of the Muslim faith and others in business and the wider community. [NAME] does not now seek any orders in respect of this party. • The ninth respondent is a corporate vehicle for investments by the [APPELLANT] family. • Mr [APPELLANT] is the [NAME]. He is the co-founder and [NAME] director of [NAME] and the founder and now patron of [NAME].

The Declarations 9 In the result, the [NAME] judge made the following declarations:

1. The [NAME] [[NAME] ([COMPANY] and [COMPANY]] have, by offering to provide, providing, advertising and marketing investment services and products, in Australia, in trade or commerce under and by reference to: (a) the name and mark "[NAME]"; (b) the corporate names [NAME] ([COMPANY] and [COMPANY]; (c) [NAME] names [NAME], [NAME], [NAME] [NAME], [NAME] and [NAME]; and (d) the domain names [NAME], [NAME].com.au, [NAME] and [NAME]. engaged in conduct that was misleading or likely to mislead or deceive in contravention of s 12DA of the [NAME] Commission Act 2001 (Cth) ([NAME]).

2. The [NAME] was knowingly involved in the conduct of each of the [NAME] in contravention of s 12DA of the [NAME], identified in Order 1.

The Orders 10 The [NAME] judge made the following order in relation to [NAME]'s use of the titles of the [NAME], use of the names for the [NAME] using the word [NAME] and use of the domain names:

3. The [NAME], by themselves, their servants or agents, be restrained from, in trade or commerce, offering to provide, providing, advertising or marketing in Australia any investment services or products under and by reference to: (a) [NAME] ([COMPANY]; (b) [COMPANY]; (c) any of the following names: (i) [NAME]; (ii) [NAME]; (iii) [NAME]; (d) any of the following domain names: (i) [NAME]; (ii) [NAME]; and (iii) [NAME]; or any name substantially identical with the names in (a)-(d). 11 The [NAME] judge made the following order concerning use of the term or mark "[NAME]", [NAME] in the way set out at sub-paras (f) and (g) of Order 4:

4. The [NAME], by themselves, their servants or agents, be restrained from, in trade or commerce, offering to provide, providing, advertising or marketing in Australia any investment services or products under and by reference to: (a) [NAME]; (b) [NAME]; (c) [NAME] [NAME]; (d) [NAME] business name; (d) the domain name [NAME].com.au; or any name substantially identical with the names in (a)-(e) without: (f) including the Respondents' logo and stating clearly and prominently, and reasonably proximately (eg not by way of footnoted text) to where any such name appears, including in any webpage, product disclosure statement, or advertising or promotional materials: "Neither [[NAME]] nor any of its products is associated or affiliated with [COMPANY]", and, in the case of a radio commercial, television, video advertisement, or promotional appearance also stating the same by way of a clear and prominent spoken statement of at least 6 seconds; or (g) otherwise clearly distinguishing its business from the business carried on by the Applicants under the name [COMPANY].

The respondents' challenge to Orders 3 and 4 12 The [NAME] contend that the [NAME] judge fell into error in framing Orders 3 and 4 because, first, having found that use of the mark "[NAME]" and the name "[NAME]" in conjunction with words such as "investments" and "[NAME]" was misleading or likely to mislead or deceive (the relevant cohort of [NAME]), the injunctions ought to have restrained any use of the terms "[NAME]" and/or "[NAME]" in connection with investment services or products of [NAME] (or any name "substantially identical" or "deceptively similar" to either of those names), not just the particular titles, [NAME] names or domain names and [NAME], the restraint in Order 4 ought to have been unqualified rather than, in effect, enabling use in conjunction with the notice or disclaimer, as framed. 13 The [NAME] judge also made a series of consequential orders. It is not necessary to set out those orders in these reasons.

The findings of the [NAME] judge and related documents and evidence 14 It is now necessary to address the findings of the [NAME] judge before turning to the grounds of appeal. In doing so, I will also make reference to some of the documents in the Appeal Book ("AB") to which the Court was taken in the context of the [NAME] judge's findings which are said to be explanatory of those findings. 15 [COMPANY], the present first respondent, has held a licence to provide financial advice, products and services since 24 November 2000 and [NAME], the present [NAME] respondent, has since 27 July 2004 been an authorised representative of [COMPANY]. [COMPANY] has, since November 2000, operated a business of [NAME] "[NAME] [NAME]". [COMPANY] selected the word "[NAME]" because it derives from the Latin word "Cresco" which means to grow, expand or increase: [NAME] at [7]. Until September 2010, the [NAME] used a logo featuring a [NAME] shape and the words "[COMPANY]". Since then, the badge of identification has consisted of simply those words with bold emphasis given to "[NAME]" as follows: [NAME] at [30]: [NAME] 16 These words, in this form, have been used on invoices, stationery, promotional and marketing material: [NAME] at [7]. Since 28 November 2000, [NAME] has operated a website with the domain name [NAME]. 17 At [9], the [NAME] judge said this as to [NAME]'s reputation: [NAME] has established, and there is no real dispute, that as at and since the commencement of [NAME]'s activities in 2010, it had and has a reputation and goodwill in the [COMPANY] and [NAME] in the name [NAME], and is often referred to as [NAME]. That reputation derives from its own activities, from its approaches to [NAME] and financial advisors, as the recipient of awards and from its activities in raising money for investment in its [NAME] (which include the use of promotional and marketing materials), as well as from media reports. [emphasis added] 18 As the above words in italics emphasise, [NAME]'s reputation in the name "[NAME]" (often referred to simply as "[NAME]") subsists "in the [COMPANY] and [NAME]" and is a reputation found "among the [NAME]" ([NAME] at [11]) as a "successful [NAME] [NAME] manager" ([NAME] at [11]), for which it has won awards from the [COMPANY] (for management buyouts in 2003 and 2014): [NAME] at [10]. The [NAME] judge notes at [12] that [NAME] describes itself in the following way: [NAME] operates a [NAME] [NAME] business. It raises money from [NAME] and uses these [NAME] either to invest directly into a business or to acquire the business and typically holds its investment for three to six years with the aim of improving and growing the underlying business, before selling it and returning the proceeds to [NAME] (after [NAME]'s fees are paid). [NAME] raises money in a series of pools, called "[NAME]", and approaches new and existing [NAME] and offers the opportunity to invest in (also called "subscribe to") the new [NAME]. [emphasis added] 19 [NAME] raises money from [NAME] to establish or constitute "[NAME]". Its first [NAME] was raised from both "[NAME] [NAME]" and "[NAME] [NAME]". [NAME] say, as they did before the [NAME] judge, that this distinction is significant in determining whether there is any likelihood of confusion (amongst the relevant [NAME] cohort) between the products or services provided by [NAME] and those of [NAME] or confusion as to any relationship or association between the [NAME] and, particularly, the [NAME]. The parties seem to agree that the formulation adopted by the [NAME] judge of the factors that determine whether a person is a [NAME] or a [NAME] client is correct for the purposes of these proceedings. 20 That being so, a client ([NAME]) is a "[NAME] client ([NAME])" where: the price of the financial product, or the value of the financial product to which the financial service relates equals or is greater than $500,000; or the financial product or service is acquired by a person who has previously provided a certificate from a [NAME] stating that the acquirer has net assets of at least $2.5 million or a gross income for each of the last two financial years of at least $250,000; or the person is a professional [NAME]. A "[NAME] ([NAME])" is a person who is not a [NAME] client ([NAME]): [NAME] at [14] and [15]. 21 The [NAME] judge at [16] identifies the following features of [NAME]'s business and particularly the business of raising money to constitute [NAME]: Other matters relevant to the description of [NAME]'s business are, put shortly: • A [NAME] is closed once the monetary target is reached or when some pre-determined period of time elapses. • There is then a call on committed [NAME] from [NAME], as [NAME] identifies suitable investments over a ten year life of [NAME], being a business identified as capable of generating the required rate of return on investment. • [NAME] specialises in acquiring or investing in small to medium sized, privately owned [NAME]. • The [NAME] which [NAME] targets are usually located in Australia and New Zealand, with enterprise values between AUD$50 and $300 million. • [NAME] has also acquired smaller [NAME] based [NAME] to integrate into an existing larger business. [NAME] are acquired as part of a 'roll-up' or aggregation strategy; for example, there was evidence that [NAME] had engaged in such activity in respect of [NAME] with individual values of as little as $1 million. • The [NAME] are operated with a view to sale or listing on the [NAME]. • The business model requires [NAME] to take control of a company or group in which it invests and to offer value-added services to companies in which it invests, such as providing strategic advice and introducing alliance networks. 22 As to the [NAME] [NAME] raised over time the [NAME] judge said this at [16]: • The first [NAME] ([NAME]) raised $25 million in 2001, the [NAME] ([NAME]) $100 million in 2004, the [NAME] ([NAME]) $400 million in 2007 and the [NAME] ([NAME]) $490 million in 2012. There is a further [NAME], [NAME], the amount raised is [NAME], but it is substantial. • Since 2004, [NAME] have been raised exclusively from [NAME]. • Returns are through long term capital appreciation rather than through immediate and regular payments of principal and interest. [NAME]' money, once committed, is tied up for the life of [NAME], viz. ten years. • It engages in [NAME] raising every three to four years, approaching both new and existing [NAME]. • [NAME] does not advertise to the general public. It does operate a website, of which only part is publicly accessible. • [NAME] is frequently referred to in the financial media by reference to its name, [COMPANY], or simply as [NAME]. [emphasis added] 23 As to the [NAME] [NAME], the position then, based on the findings at [16] is this: [NAME] [NAME] of [NAME] 2001 $25 million 2011 [NAME] and [NAME] [NAME] [NAME] 2004 $100 million 2014 [NAME] [NAME] only [NAME] 2007 $400 million 2017 [NAME] [NAME] only [NAME] 2012 $490 million 2022 [NAME] [NAME] only [NAME] 2015 [NAME] 2025 [NAME] [NAME] only

24 The majority of the [NAME] in these [NAME] are [NAME] [NAME] or institutional [NAME]: [NAME] at [17]. 25 The minimum investment amount for the 2004 [NAME] was $250,000: [NAME] at [17]. The minimum investment amount for the [NAME] is described by the [NAME] judge at [17] as "substantially higher than $250,000". The average amount invested by each [NAME] in the [NAME] was "extremely [NAME]": [NAME] at [17]. These matters of the prevailing minimum investment threshold for each [NAME] are put in this elliptical way by the [NAME] judge due to the [NAME] nature of the [NAME] placement prospectus issued to [NAME]. Participation in each [NAME] after the 2001 [NAME] "has, in effect, been by invitation": [NAME] at [17]. 26 [NAME] contend that in determining the "hypothetical representative" of the relevant [NAME] cohort so as to determine whether relevant [NAME] are being, or are likely to be, misled by [NAME]'s use of "[NAME]" and "[NAME]" (in combination with other words or not), the [NAME] substantial minimum investment threshold for participation in [NAME]'s [NAME] investment [NAME] (and particularly the [NAME] and [NAME] with their corresponding institutional and [NAME]), means that such an [NAME] is not properly regarded as a hypothetical representative of the relevant [NAME] class due to [NAME]'s focus of concentrating on "[NAME] seeking to invest in low risk/low return Sharia-compliant [NAME] and related investment products in traditional assets classes (not including [NAME])". 27 [NAME] say that the [NAME] judge's reference at [16] (the [NAME] dot point) to the "rate of return" for [NAME] invested with [NAME] is a reference to: "[NAME] returns are targeted: 25% per annum (pre tax, pre fees) over the medium term": [NAME] [NAME], 28 November 2000; "18% per annum (pre tax, post fees)": Prospectus 27 June 2001; "Target IRR [Internal Rate of Return] 25% per annum (pre fees)": [NAME], AB, Part C, Tab 9.2, pp 259 and 426. Mr [NAME], [NAME]'s Chief Financial Officer and Finance Director, describes [NAME]'s rate of return as about "20% per annum after fees": para 29, affidavit 17 October 2014. 28 [NAME] emphasise that at [16] (the [NAME] dot point), the [NAME] judge observes that [NAME] specialises in acquiring or investing in small to medium-sized privately owned [NAME]. The [NAME] business investment method is described by Mr [NAME] in these terms in his affidavit: 14 Once a [NAME] is closed, [NAME] begins to seek out suitable [NAME] to buy or in which to invest. A suitable business is a business that [NAME] identifies as being capable of generating the required rate of return on investment. [NAME] usually targets [NAME] located in Australia and New Zealand with enterprise values of between A$50 million and A$300 million. [NAME] also often acquires [NAME] to integrate into one of its existing larger [NAME], or acquires them as part of a "roll-up" strategy whereby it aggregates a number of [NAME] to corporatise into a larger business. These [NAME] may have values of significantly less than A$50 million. For example, [NAME] is at present buying and aggregating [NAME], some of which have a value of as little as A$1 million. … 16 [NAME] continues to buy and invest in [NAME] until [NAME] is approximately 80% spent. [NAME] will then operate the [NAME] in which it has invested, sometimes for several years, and attempt to increase their profitability by measures such as providing additional capital for expansion, enhancing management expertise, improving business operations, and, in some cases, growing the business through acquisitions. 17 Eventually, [NAME] aims to sell the [NAME] to trade or financial buyers or to list them on a [NAME]. If [NAME] are listed on a [NAME], the stock is sold by investment banks to their institutional and [NAME] [NAME]. [NAME] often retains a small interest in the listed entity. The money from the sale or listing of the [NAME] is then returned to the [NAME] in the relevant [NAME], after management and performance fees are paid to [NAME]. [emphasis added] 29 At [18], the [NAME] judge characterised investment in [NAME]'s [NAME] in this way: Investment in [NAME]'s [NAME] can be characterised as [NAME] risk, [NAME] return investment and requires long term commitment of [NAME] with no certainty of returns. [NAME], including prospective [NAME], can be characterised as [NAME] who consider investments carefully before proceeding. Many of those [NAME] use [NAME] and many are [NAME] or [NAME]. [emphasis added] 30 [NAME]'s [NAME] of October 2010 explains the risks in these terms: AB, Part C, Tab 9.2, pp 157 and 213: RISK An investment in [NAME] should be regarded as speculative and will involve significant risks, due to the nature of the investments [NAME] intends to make. [NAME] is not a suitable investment for persons unable to sustain a loss of all or part of the sum invested or who require certain or predictable income flows. [NAME] should have the financial ability and willingness to accept the risks and lack of liquidity which are characteristic of the investments described in this [NAME], for the entire term of [NAME]. In particular, the attention of prospective [NAME] is drawn to the risk factors set out in Section 10 of this [NAME].

10. RISK FACTORS AND CONFLICTS RISK FACTORS Investment in [NAME] entails a [NAME] degree of risk and is suitable only for [NAME] who understand fully, and are capable of assessing, the risks of a [NAME] [NAME] of this nature. The Manager does not guarantee any level of return to [NAME] and the historic performance of investments managed by the Manager or associate companies cannot be taken as an indication of the future performance of [NAME]. [NAME] should consider carefully the factors below (amongst others) in making their investment decision. These risk factors do not purport to be a complete explanation of the risks involved in investing in [NAME]. [NAME] must read the entire [NAME], and must consult their own professional advisors, before deciding to invest in [NAME]. [emphasis added] 31 In a report dated June 2001, [NAME] (engaged by [NAME]) reviewed the first of [NAME]'s [NAME]. As to the risk profile and diversification benefits of investing in [NAME]'s [NAME], the report says this at pp 4 and 10 (pp 690 and 696 of the AB respectively):

At p 4 • [NAME] is less liquid and offers less information it has higher total risk than publicly traded [NAME]. At the same time, due to the appraisal based valuation method, [NAME] has lower market-related risk. Due to its diversification benefits [NAME] deserves a place in a [NAME] portfolio. The tax advantaged structure of [NAME] makes [COMPANY] an attractive investment for a range of [NAME] such as: DIY, master [NAME] or [NAME], institutional [NAME] and [NAME]. • The [NAME] is a suitable investment for a [NAME] who is comfortable with the risks involved and constraints of this investment. If an [NAME] decides to invest in this vehicle we would recommend an allocation of up to 5% for a [NAME] and up to 10% for a [NAME].

At p 10 Role of [NAME] in diversified Portfolios Due to the low market risk, it follows [that] the correlation between [NAME] and other asset classes over the longer term periods is relatively low too. This points to considerable diversification benefits of investing in [NAME] as the overall portfolio risk can be reduced substantially. The chart below illustrates the relative positioning of [NAME] and venture capital using 10 years annualised figures for equities and bonds. For [NAME] and venture capital we assumed a long term return of 20% and 25% and a volatility of 20% and 25% respectively. These numbers are generally in line with historical figures and in our opinion reflects the inherent risks of this asset class. As can be seen from the chart [NAME]/venture capital is expected to provide higher returns relative to listed markets accompanied with slightly [NAME] volatility (for [NAME]) and a significantly higher volatility for venture capital. 32 The chart referred to by [NAME] at p 10 is a graph showing the "Risk Return Spectrum" as between [NAME] and venture capital on the one hand and traditional asset classes on the other hand. The conclusions emerging from the graph are set out in the quote from the report above at p 10. As to the graph which shows that [NAME]/venture capital is expected to provide higher returns relative to listed markets (and slightly higher volatility for [NAME]), Mr [NAME] accepted in cross-examination, that it was common "in the [[COMPANY]" to distinguish between [NAME] and venture capital investments on the one hand and traditional asset classes on the other hand and that [NAME] and venture capital investments are distinguished from traditional asset classes by reason of their "[NAME] risks and [NAME] return profile". Mr [NAME] also accepted that those differences mean that a "rational [NAME]" seeking [NAME] returns through investing in [NAME] would not see listed securities, for example (as one traditional asset class), as a substitute for a [NAME] investment: T, p 99, lns 5-18. 33 At p 20, the [NAME] report concludes in these terms: Overall, we believe that exposure to the [COMPANY] is suitable for a [NAME] who is comfortable with the risks involved and the constraints of this investment. Should an [NAME] decide to invest in this [NAME] we recommend an allocation up to 5% for a [NAME] and 10% for a [NAME]. 34 In the questions put to Mr [NAME] about the differentiation between [NAME] investments and investments in traditional asset classes, Mr [NAME] was asked about distinctions drawn by members of the "[[COMPANY]" and distinctions drawn by a "rational [NAME]". [NAME] contend that when Mr [NAME] drew or accepted these distinctions, he was speaking of distinctions drawn by persons who would be likely to be interested in investing in [NAME]. [NAME] contend that the findings of the [NAME] judge at [18] that [NAME]'s [NAME] can be characterised as [NAME] risk/[NAME] return [NAME] investments requiring long term commitment with no certainty of returns means that this class of investments is not substitutable for investments in traditional asset classes and that, as a class of investment, [NAME]'s sequence of [NAME] represent [NAME] investments made by "[NAME]" who "consider investments carefully" before making an investment (as the [NAME] judge found at [18]). Moreover, they say that many of these [NAME] who are thinking carefully about their investments before making an investment (and whether they will invest in a [NAME]), call in aid "[NAME]". Many of these [NAME] are "[NAME]" or "[NAME]": [NAME] at [18]. 35 As to the use of advisers, [NAME] emphasise the evidence given before the [NAME] judge by [NAME], the [NAME] Partner of [COMPANY] ("[COMPANY]"), an organisation engaged by [NAME] to provide advice about investments in [NAME] [NAME]. [NAME] gave evidence before the [NAME] judge that [NAME] investments made by [NAME] of [COMPANY] (as one class of [NAME]) made "substantial" [NAME] investments and the investments were "relatively risky" compared to other asset classes. Partly, no doubt, for that reason, [NAME], he says, seek advice from [NAME] investment advisers before making such investments. [NAME] says that about half of the [NAME] making [NAME] investments use such an adviser and where the investment falls into other asset classes such as listed securities or property, [COMPANY]'s [NAME] consult other advisers: T, p 162, lns 22-45. As to the other 50% making [NAME] investments, Mr [NAME] said this in evidence at T, p 163, lns 1-10: Q: And the balance tend to be larger [NAME] with resources to analyse potential [NAME] investments in-house before making them? A: Yes, although there are cases of smaller [NAME] that will kind of – you know, [NAME] net [NAME] groups and family offices that will kind of make investments on their own behalf. Q: And they, too, will tend to have in-house experts who advise them on those investments; correct? A: Yes, or they will rely on their own expertise. Q: Yes. And in your experience, as a rule, [NAME] take considerable care before making their investments; correct? A: Yes. 36 As to [NAME]'s business, it too is "concerned with the making of investments": [NAME] at [19]. It offers "Sharia compliant [NAME]" through the [NAME] and "additional managed investment products to the public". It is a "[NAME] management business": [NAME] at [19] and [20]. [NAME] ensures that its Sharia compliant financial products accord with the "highest international standards of Sharia compliance" and it promotes itself as investing in, and providing [COMPANY] in connection with, Sharia compliant services and products: [NAME] at [20] and [21]. However, its [COMPANY] is not [COMPANY] to those services and products. The [NAME] judge put it this way at [21]: … [[NAME]] is authorised to provide [COMPANY] to [NAME] and [NAME] [NAME] of any, or no, faith, including [NAME] and financial planners. [NAME]'s marketing is directed toward the public at large, with a particular emphasis on [NAME] [NAME] of the Islamic faith. It does have a significant institutional investment, of $1.5 million, from [NAME], an [NAME] [NAME]. [emphasis added] 37 By the end of 2014, [NAME] had [NAME] under management of $70 million and 3,000 members. The [NAME] judge notes that by the end of 2015 [NAME] under management were expected to be between $150 million and $200 million: [NAME] at [22]. [NAME] offers investments in four managed [NAME]: [NAME], [NAME] [NAME], [NAME] and [NAME]. These [NAME] are managed by [NAME] party managers such as the "[COMPANY]" and "[NAME]": [NAME] at [23]. 38 At [23], the [NAME] judge describes (and finds) the investment method bears these characteristics: … The proportion of an [NAME]'s [NAME] contributions invested in each [NAME] product depends on the [NAME]'s choice between "[NAME]", "[NAME]" and "conservative" investment options. The products are designed for, and available to, [NAME] [NAME]. They are low risk and low return, especially when compared to the returns expected from [NAME]'s [NAME]. Returns are distributed regularly and the [NAME] product has no minimum investment requirement; the other managed investment products each have a minimum requirement for direct investment of $5,000, subject to a discretion to accept lower investment amounts. [NAME] can be withdrawn by an [NAME] at any time. [emphasis added] 39 As to the emphasis that [NAME] places upon the Sharia compliant financial products (and services) it offers, the [NAME] judge observes at [24] that [NAME] controlled by [NAME] are not invested in entities that engage in "non-permissible" activities according to the Islamic faith. [NAME]'s Investment Choice Guide for [NAME] investments, for example, describes non-permissible investments as gambling, sale or manufacture of weaponry and the sale and manufacture of alcohol, tobacco and adult material. Depending upon the asset class, certain assets might be regarded as suitable investments even though a "small proportion" of the entity's revenue is derived from non-permissible investments provided that the proportion falls within the limits set by the Accounting and Auditing Organisation for Islamic Financial Institutions ("AAOIFI"). The [APPELLANT] (the [NAME] appellant) plays a role of "cleansing" any income derived from receipts of "interest" (by receipting those payments and making corresponding donations to [NAME]) so as to ensure that [NAME] remains Sharia compliant: [NAME] at [25]. [NAME]'s efforts to ensure that its products remain Sharia compliant "are, indeed, extensive": [NAME] at [26]. [NAME] has adopted a number of "distinctive procedures" to ensure ongoing compliance with Islamic financial principles. They include a review of investments by the [NAME] (the "[NAME]") comprised of Islamic experts and scholars and ensuring that investments comply with the rulings of [NAME]. 40 As to these matters, the [NAME] judge at [27] and [28] finds:

27. I accept that adherence to Islamic investment principles is a core component of [NAME]'s business and investment strategy. Moreover, it is apparent, and I accept, that [NAME] has established a reputation in relation to Sharia compliant financial products. 28. [NAME]'s [NAME] offering is its [NAME] product, with 80% to 90% of the [NAME] under management by [NAME] attributable to [NAME]. Nevertheless, [NAME] also accepts investments into the managed investment products directly. Such investment accounts for the remaining 10% to 20% of the [NAME] it manages. [emphasis added] 41 As to these matters, [NAME] emphasise that 80% to 90% of [NAME]'s business is Sharia compliant [NAME] and that the [NAME] [NAME] are invested in the four [NAME] according to the options exercised by the [NAME]. The [NAME] monies might be invested in [NAME] listed securities (the [NAME]); securities listed on international stock exchanges ([NAME] [NAME]); real property (the [NAME]); and, cash instruments such as bonds (the [NAME]). The remaining 10% to 20% of [NAME]'s business is made up of direct investments into one or more of those four [NAME]. 42 [NAME] uses the following logo: 43 [NAME] operates a series of domain names incorporating either "[NAME]" or "[NAME]". 44 At [56] and [57], the [NAME] judge notes (and finds) the following differentiating factors and similarities between [NAME] and [NAME]: 56 As at the present, there are a number of matters that differentiate the two parties, including: The products provided. The logos associated with the respective [NAME]. The class of [NAME] to whom the products are provided. The nature of the investments offered. The persons or institutions to which the products are marketed. The emphasis by [NAME] on Sharia compliant products. 57 There are also a number of similarities, including: The use of "[NAME]" with respect to offerings. Domain names. 45 The findings of the [NAME] judge, not surprisingly, emerge out of the way in which the contentions of the parties were framed having regard to the state of the evidence. The [NAME] judge notes that the "concern" of [NAME] was "largely directed" to the "future conduct" of [NAME] in expanding beyond "its existing [NAME] base" which "already includes institutional [NAME]". [NAME] contended that [NAME] operated through [NAME] managers and was diversifying into higher risk property investments and might diversify into [NAME] investments: [NAME] at [58]. As to the core points of differentiation, [NAME] contended that there was no evidence before the [NAME] judge of "any realistic prospect" of [NAME] entering the "[NAME] field" and no evidence that [NAME] intends to commence Sharia compliant lending. As to these matters of differentiation, the [NAME] judge at [60] finds that [NAME] has agreed with some specific [NAME] to limit investments from its [NAME] to "ethical investing" including some limitations consistent with "aspects of Sharia law" and "other limitations" sought by "an [NAME]" that do not fall within the description of either Sharia law compliant or ethical investing. 46 The [NAME] judge observes at [60] that notwithstanding that [NAME] has not engaged in "fully Sharia compliant investing" (although it has engaged in ethical investing and on occasions ethical investments consistent with Sharia law), "it cannot be said that [NAME] has decided to remove itself from offering Sharia compliant investments". Notwithstanding the retention of the possibility of offering Sharia compliant lending, the [NAME] judge concludes (finds), also at [60], that "there is no evidence to suggest that [NAME] intends to offer [NAME] products or any products other than [NAME] investments" [emphasis added]. The [NAME] judge also concludes at [60] that [NAME]'s retention of the possibility of "offerings to [NAME] [NAME]" of products and [COMPANY] (whether Sharia law compliant or otherwise) does not suggest any intention to do so especially having regard to the "nature and amounts of investment progressively [made into] the [NAME] since [NAME]" [emphasis added]. 47 At [61], the [NAME] judge finds: There is no evidence that [NAME], as a [NAME] [NAME], will offer [NAME] products or that [NAME] will set up a [NAME] business. [emphasis added] 48 That finding is subject to an immediate qualification by the [NAME] judge drawing upon [NAME]'s apparent recognition or acceptance that as [NAME] grows, "it may attract [NAME]" and "it is likely that any separation that can be said to presently exist in the class of [NAME] in the respective [NAME] will diminish" [emphasis added]. At [63], the [NAME] judge concludes that the "neat division" between "classes of [NAME]" within the [[COMPANY] and in the fields of [NAME] or investment management into "[NAME] [NAME]" and "[NAME]", between "unsophisticated" and "[NAME]" [NAME] and between those who invest in "[NAME]" investments and those who do not, is "artificial" and fails to recognise that "[NAME] managers and [NAME] may make investments across many different asset classes and in order to balance their portfolio and to maximise returns" [emphasis added]. 49 Consistent with that view of commercial engagement across many different asset classes, the [NAME] judge at [63] notes that [NAME] "already" operates across four of the five identified asset classes: cash, fixed interest, property and shares. 50 The [NAME] judge at [63] accepts [NAME]'s contention that "[NAME]", as "[NAME] in this industry" do not "necessarily or practically" restrict themselves to one class of investment or to one offeror of investment opportunities, whether within an asset class or across asset classes. 51 The [NAME] judge also finds that [NAME]/[NAME] would experience "difficulty of obvious separation" between the [NAME] of [NAME] and those of [NAME] having regard to the use of "[NAME]" in the various [NAME] titles: [NAME] at [65]. The [NAME] are described as [NAME] (or [NAME]) and [NAME], III, IV and V. [NAME] uses the term "[NAME]" in the title of the [NAME] [NAME] and the [NAME]. It uses the term "[NAME]" in three of the other [NAME]. 52 At [69], the [NAME] judge concludes that "[NAME]", as a term, is not confined, in the minds of [NAME] ([NAME]), to any particular class of asset investment and both [NAME] and [NAME] operate [NAME] by reference to the term "[NAME]". 53 At [69], the [NAME] judge makes this finding: I accept that persons making investments, in particular investments of the quantum invested in [NAME]'s [NAME], would take care in the object of that investment and, at present, there is a difference in the nature of the investments that [the] parties offer. [emphasis added] 54 The [NAME] judge finds that that difference, however, is not decisive because [NAME] do not necessarily "restrict themselves to a single asset class" and [NAME] has (and is) diversifying "within and across asset classes" and has (and is) expanding the amount of [NAME] under management, which has the effect of attracting [NAME] "beyond the 'mum and dad' category that presently provides much of its [NAME] investment": [NAME] at [69]. It followed, for the [NAME] judge, at [69] that: There is sufficient likelihood of [NAME] and those advising them being misled or deceived or confused by [NAME]'s offerings into believing that [NAME]'s [NAME] are those of [NAME] or are part of, or associated with, or managed by, or connected to [NAME]. [emphasis added] 55 The [NAME] judge concluded at [70] that the point of distinction between the circumstances prevailing in [COMPANY] v [COMPANY] (2015) 115 IPR 67 (a case involving large, [NAME] [NAME], discerning institutional [NAME]) and the circumstances relevant to the activities of [NAME] and [NAME], is that [NAME] "is not aiming its activities at [NAME], such that less [NAME] [NAME] might well be misled" [emphasis added]. 56 The [NAME] judge at [70] accepted that the relevant [NAME] is not, in all the circumstances, "necessarily a [NAME] one". 57 In the result, the [NAME] judge concluded that the [NAME] had engaged in conduct that was misleading or deceptive or likely to mislead or deceive by reason of their use of "[NAME]"; the names of the [NAME]; the use of the domain names and the use of the name "[NAME]" together with generic words such as "investments" and "[NAME]" and similar such words. That followed for the [NAME] judge because such use is likely to lead [NAME] to believe, wrongly, that such [NAME], products or services of [NAME] are those of, or associated with, [NAME]: [NAME] at [89]. However, the [NAME] judge also concluded that the contravening conduct, as found, did not mean that all use of the word "[NAME]" either alone or in association with other words or in conjunction with a disclaimer, would result in [NAME]/[NAME] being misled. The [NAME] judge found that Mr [APPELLANT] was involved in the contraventions of the [NAME]. The [NAME] failed to make good their case against the present [NAME] to ninth [NAME].

The grounds of appeal 58 [NAME] contend that the [NAME] judge fell into error in finding that the [NAME] had engaged in misleading or deceptive conduct (or conduct likely to mislead and deceive), principally having regard to the following four considerations. First, the relevant class of [NAME], they say, is made up of [NAME] seeking to invest in low risk/low return Sharia compliant [NAME] and related investment products in traditional asset classes which do not include [NAME] investments. [NAME], [NAME] has no reputation in the names and marks "[NAME]", "[NAME]" and "[COMPANY]" other than a reputation amongst the [NAME] as a successful [NAME] [NAME] manager. [NAME], [NAME] (by the first two [NAME]) and [NAME] were not, and were not likely to be, engaged in a common field of activity because: (a) [NAME] did not conduct and had no intention of conducting a [NAME] business; and, (b) [NAME] only conducts a [NAME] business and has no intention of conducting any other business. [NAME], persons considering investments offered by [NAME] and investments offered by [NAME] would take care in "the object of their investment" and would view online information or receive documentation showing the logo of [NAME] (if their offering) or the logo of [NAME] (if their offering): Ground 1. 59 [NAME] say that the [NAME] judge fell into error in finding that there was a likelihood of [NAME] (not being "mum and dad" [NAME]), and those advising them, being misled or deceived or confused by the conduct of [NAME] into believing that [NAME]'s [NAME] were those of [NAME] or associated with or managed by or connected to [NAME]: Ground 2. 60 [NAME] say that the [NAME] judge erred by concluding that there was a likelihood that "less [NAME]" [NAME] might be misled by the conduct of [NAME] (Ground 3) and erred by failing to find that the relevant class of [NAME] comprised [NAME] seeking to invest in low risk/low return Sharia compliant [NAME] and related investment products in traditional asset classes not including [NAME]: Ground 4.

Considerations 61 [NAME] emphasise a number of features of [NAME] which, they say, differentiate the activities of [NAME] from the investment activities of [NAME]. 62 First, 80% to 90% of [NAME]'s business activity is concerned with the investment of [NAME] monies in and across the four [NAME]. The remaining 10% to 20% of its activities are concerned with direct investments into and across those [NAME]. Thus, 100% of its business activities for [NAME] are concerned with Sharia compliant investing. 63 [NAME], investments in the [NAME] are designed for and available to [NAME] [NAME] and the [NAME] product has no minimum investment requirement. The minimum investment threshold for direct investment into any one of the [NAME] is $5,000: [NAME] at [23]. 64 [NAME], the investments are low risk/low return investments: the [NAME] investments target 2% to 4% above the inflation rate; the [NAME] targets a return of 6.8%; the [NAME] targets "capital [NAME] over the long term with total return [after fees] above the [NAME] expressed in AUD [unhedged]"; the [NAME] targets a return 3% above the [COMPANY] ("[NAME]") cash rate; and the [NAME] (a cash management [NAME]) targets a return "above" the [NAME] cash rate. 65 [NAME], the [NAME] distribute returns regularly. 66 [NAME], investments can be withdrawn at any time. 67 Sixth, [NAME] are managed by [NAME] party professional managers rather than [NAME] as it says that it does not have the expertise to manage investment [NAME]. 68 [NAME], all of the [NAME] are Sharia compliant [NAME]. 69 [NAME] contrast these seven features with those that, they say, characterise the [NAME] investments and thus the focus of [NAME]'s activities (and those [NAME] with whom it engages). 70 First, [NAME] opens [NAME] (every three to five years) and raises from [NAME] a target [NAME] amount or keeps [NAME] open for investment for a set time and then closes [NAME]. 71 [NAME], by this method, it offers [NAME] an opportunity, through the [NAME], to make [NAME] investments: a fundamentally different class of investments, they say, to that offered through [NAME]. 72 [NAME], [NAME] are invested for the 10 year life of the particular [NAME]. 73 [NAME], the business model involves investing [NAME] monies in small to medium enterprises by taking [NAME], engaging directly in the conduct of the undertaking to lift proper performance and then securing a trade sale or a listing of relevant securities on an exchange. 74 [NAME], the required rate of return is significant. 75 Sixth, the required rate of return is [NAME] because the investments are [NAME] risk. 76 [NAME], [NAME] investments are a way in which [NAME] diversify their investments across a portfolio of investments and [NAME] investments are only suitable as a small percentage of a [NAME]'s total portfolio. 77 [NAME], the traditional or main asset classes for investment are said to be cash, fixed interest, property and shares whereas [NAME] investments in non-listed entities are regarded as investments in "alternative" assets with returns which differ from investments in traditional asset classes and which "provide diversification". [NAME] say that this characterisation of traditional asset classes on the one hand and alternative assets (including [NAME] investments) on the other hand, and, diversification advantages for an [NAME]'s total investment portfolio can be seen in the text of the [NAME] document (AB, Tab 9.1, p 1141) and the [NAME]. As to the Trust document, it recognises that: "Alternative assets would be expected to have a pattern of returns that differs from traditional assets and thus they are expected to provide diversification". 78 [NAME]' emphasis on this feature of [NAME] investments as compared with traditional asset classes is inherently difficult. Although the point is advanced to seek to demonstrate differentiation in the focus and investment activities of [NAME] (and its dedication to serving and offering [NAME] opportunities to [NAME]) from the focus and investment activities of [NAME], the point necessarily recognises (supported by the material) that those [NAME] looking to invest in [NAME] enabling of [NAME] investments (with the possibility of [NAME] returns counter-[NAME] against corresponding [NAME] risks) are likely to be doing so as part of a diversification strategy to balance a portfolio of investments where the [NAME] investment might make up a small proportion of an [NAME]'s portfolio of asset classes comprising a mixture of the "main asset classes" and "alternative assets" including [NAME] investments and other alternative assets: market mutual [NAME], hedge [NAME], commodities and infrastructure. 79 If the underlying investment methodology of those persons who invest in [NAME] is to secure balance and diversification across a portfolio of investments (including the main asset classes), those [NAME] who engage with [NAME] on the discrete and singular issue of the merits of investing in one of its [NAME] focused [NAME], are likely to see, engage with or otherwise deal with other financial service and product providers focused upon the main asset classes. Those other providers might well include [NAME] and its four [NAME] (even though such an [NAME] may not be looking for Sharia compliant investments). 80 [NAME] contend that [NAME] who engage with [NAME] are [NAME] [NAME], careful, inquiring and discerning [NAME] who would not be misled, or be likely to be misled, should they engage with [NAME] because the investment offerings of [NAME] (which do not include any aspect of [NAME] investment) are so fundamentally different from the [NAME] investment offerings of [NAME] that any such [NAME] would not fall into a false view that the service and product offerings of [NAME] were those of [NAME] or that [NAME] was associated in some way, shape or form with [NAME]. That follows, it is said, also because [NAME] investments are distinguished from other types of investments and not substitutable for them. 81 Finally, [NAME] say that an important point of differentiation is that none of the investments [NAME] has offered in its various [NAME] are Sharia compliant and although in its [NAME] [NAME], [NAME] adopted a "responsible investment policy" (avoiding investments in entities producing, for example, tobacco products), the policy did not compel Sharia compliant investments by its [NAME]: [NAME], [NAME] and other [COMPANY] remained available investments. [NAME] says that although a responsible lending policy might be regarded as a policy of making "ethical investments" there is "a world of difference" between ethical investments on the one hand and Sharia compliant investments on the other hand. 82 In fact, [NAME] say that the [NAME] character of [NAME]'s sequence of [NAME] (and particularly, relevantly, its most recent two [NAME]), coupled with the notion that an [NAME] in those [NAME] needs to be "a [NAME] large institution or an [NAME] to participate" (as counsel for [NAME] puts it), renders [NAME]'s [NAME], as a cohort, a [NAME] narrow silo of [NAME] "entirely differentiated" from the things [NAME] does: never the [NAME] twain shall meet. 83 It is now necessary to examine aspects of the material in a little detail. I do so by means of a [NAME] schedule to these reasons which will be published to the parties but not otherwise. 84 [NAME]'s monthly report for July 2006 to [NAME] for its [NAME] [NAME] sets out a list of [NAME] in that [NAME] and the magnitude of their investments. There are 12 identified [NAME] (apart from the last two lines on the list), 11 of which are institutions. On any view, their "Committed Capital" and drawn-down or "Contributed Value" is [NAME] substantial: see [NAME], Box 1. The last two lines on the list are described as "[NAME] [NAME]" and "[NAME] [NAME] I [NAME]/Friends of [NAME]". These last two categories on the list represent persons connected with [NAME] and [NAME] who had invested in the first [NAME] and continue to participate in later [NAME] due to their participation at the outset. [NAME] say that as to these last two groups of [NAME], there is simply no prospect of anyone being misled by [NAME]'s use of the name "[NAME]" or "[NAME]" because these [NAME] are "utterly aware" that [NAME] is not [NAME] and are similarly aware of how [NAME] differs from [NAME]. 85 In March 2012 the "[COMPANY]", engaged by [NAME] to seek out [NAME], published a report in relation to the [NAME] [NAME]. The total number of "[COMPANY]" is set out at [NAME], Box 2. The total investment commitments are set out at [NAME], Box 3. The investing group is relatively small and the commitments are [NAME] substantial. Page 15 of that document sets out a list of [NAME] in [NAME] which identifies the institutional [NAME] and a group described as "[NAME]" and another group called "General Partner". These two groups are persons associated with [NAME] or partners in [NAME]. As before, [NAME] say that no [NAME] in either of these two groups could possibly be misled by reason of [NAME]'s use of "[NAME]" or "[NAME]". 86 As to [NAME], the minimum investment is [NAME] substantial: see [NAME], Box 4. The minimum investment for [NAME] was the same amount and expressed in the same way. The minimum investment for [NAME] was also significant: see [NAME], Box 5. Contextually, the minimum investment in [NAME] was $250,000: [NAME] at [17]. [NAME] say that if it is correct to say that a prudent [NAME] places about 5% to 10% of their investments in [NAME] [NAME] return/[NAME] risk investments (as a portfolio balancing exercise) then the total portfolio of each [NAME] making the minimum investment in [NAME] and [NAME] would, theoretically, be in the range set out in [NAME], Box 6 which means that the numbers in [NAME], Box 7 would be invested in other assets. [NAME] say that the true character of [NAME]'s [NAME] investment activity is reflected in the circumstance that the minimum investment threshold for [NAME] and the likely magnitude of particular investments made into those [NAME] made it necessary for [NAME] to establish (for [NAME], for example) an electronic data room of documents to enable [NAME] to conduct a due diligence process much along the lines of an acquisition. 87 [NAME] say that none of this characterises [NAME]'s investment services or products. 88 As to [NAME]'s presentation of itself to [NAME], [NAME] say that its [NAME] use the logo at [42] of these reasons [NAME] extensively and extensive emphasis is given to the Islamic compliant character of its investments. For example, the screen shot at AB Tab 5.1, p 50 uses the logo, next to the words: Professional Development [NAME] for Professionals 89 Also at AB Tab 5.1, p 50 the following text occurs next to the logo: Join us for our next ISLAMIC SUPER INFO SESSION 90 Similar references occur in the [NAME] screenshots at AB Tab 5.1, pp 49, 52, 54 and 56. 91 All of the [NAME] screenshots at Tab 5.1 make extensive use of the logo and extensive reference to the relationship between [COMPANY] and conformity with Halal or Islamic principles. So too does the website. The screenshots at AB Tab 22 show extensive use of the logo throughout; prominent references to "Australia's First [NAME] Manager"; a description "About Us" in these terms: "[NAME] is Australia's first [NAME]-ethical [NAME] manager, offering a [NAME] [NAME] as well as a series of managed [NAME] that invest into socially responsible assets based on Islamic investment principles"; details about each of the Board members of [NAME] Board, under the heading (and logo): "Australia's First [NAME] Manager"; details about the members of [NAME] Board under the same heading (and logo); and details about the members of [NAME] [NAME] (under and by reference to the same heading and logo). 92 The advertising and brochure material relating to the [NAME] product emphasises the logo, prominently describes the product as "[NAME]" and describes [NAME] much in the same terms as the [NAME] and website screenshots. 93 Large APN Billboards prominently display the logo, the words "[NAME]" and the question: "Is your Super Halal? Ours is." 94 The Product Disclosure Statement ("PDS") for the [NAME] displays the logo and tells the reader, apart from a range of required information, the following: 1. [NAME] [NAME] is Australia's first dedicated [NAME] [NAME] manager offering an innovative suite of investment products. As a pioneer with specialist expertise in a dynamic new sector, we offer all Australians and attractive alternative in socially responsible investing. … 3. Benefits of investing with [NAME] [NAME] is designed to allow you to save and accumulate your [NAME] based on Islamic investment principles.

5. How we invest your money [NAME] investing, certain social and moral considerations, which are in accordance with Islamic investment principles, are taken into account in determining the investment objectives of the underlying [NAME] in which [NAME] invests. For example, investment and assets which may give exposure to income from gambling, adult material, alcohol or weaponry is avoided. These principles are [NAME] relevant to the acquisition of assets in the underlying [NAME]. 95 The asset classes making up the [NAME] [NAME], as described in the PDS, are: [NAME], International Shares, Property and Cash and Fixed Income. [NAME] say that none of the marketing material conveys any suggestion of an association with a [NAME] [NAME] named [NAME]. 96 In these proceedings, [NAME], plainly enough, must demonstrate error on the part of the [NAME] judge. In the principal proceeding, the respondents claimed damages under s 12GF of the [NAME] (apart from claims under the ACL) for loss suffered by reason of contended contraventions of s 12DA and s 12DB of the [NAME]. Although those provisions are well known, it should be noted that s 12DA contains a statutory prohibition upon a person, in trade or commerce, engaging in conduct, in relation to [COMPANY], that is misleading or deceptive or likely to mislead or deceive. Section 12DB contains a statutory prohibition upon a person, in trade or commerce, in connection with the supply or possible supply of [COMPANY], or in connection with the promotion, by any means, of the supply or use of [COMPANY]; making a false or misleading representation that services are of a particular standard, quality, value or grade; or making a false or misleading representation that services have sponsorship, approval, performance characteristics, uses or benefits; or making a false or misleading representation that the person making the representation has a sponsorship approval or affiliation. 97 The [NAME] was confined to the question of whether [NAME] had engaged in contravening conduct. 98 As already noted, the [NAME] judge found contraventions by the [NAME] by conduct consisting of use of "[NAME]", the names of [NAME]'s [NAME], use of domain names and use of "[NAME]" coupled with words such as "investments" and "[NAME]": [NAME] at [71] and [89]. 99 Declaration 1, explanatory of the conduct, is framed in terms of contraventions of s 12DA of the [NAME]. Orders 3 and 4 are restraining injunctions which give remedial expression to the contraventions. Orders 5 and 7 are mandatory corrective orders. Order 6 restrains Mr [APPELLANT] from aiding the [NAME] from engaging in any conduct which would not comply with Orders 3 and 4. 100 [NAME]'s conduct is directed to "the public at large" with a particular emphasis on [NAME] [NAME] of the Islamic faith: [NAME] at [21]. 101 In [NAME] v [NAME] (2000) 202 CLR 45 ("[NAME]"), the Court (all seven Justices: Gleeson CJ, [APPELLANT], Kirby, [APPELLANT] JJ) observed that the question that arose in that case (as it does in this case) was whether there was a "sufficient nexus" between the conduct and the "contended misconceptions" (or contended deceptions) in the mind of others: [NAME], [98]. 102 [NAME] here contend that there is no nexus sufficient to support the contraventions or the relief granted against [NAME] (and particularly the [NAME]) by the [NAME] judge. 103 The question cannot be considered "in the abstract": [NAME], [99]. Regard must be had to the particular circumstances of the case: [NAME], [99]. Whether the conduct amounts to a representation is a question of fact to be decided against the background of "all the surrounding circumstances": [NAME], [100]. Where, as in this case, the conduct consists of contended representations to the "public at large or to a section thereof", the issue of the "sufficiency of the nexus" between the conduct (or apprehended conduct) and the misleading, or likely misleading, of persons acquiring (purchasing) the service (or products) is to be approached at a "level of abstraction" ([NAME], [101]) not present in the case of an express untrue representation made to a specific identified individual: a direct linear representation. 104 The "level of abstraction" finds expression in the "entry" into the inquiry of the "ordinary" (Mason J, [COMPANY] v [COMPANY] (1982) 149 CLR 191 at 210 ("[NAME]") or "reasonable" (Gibbs CJ, [NAME] at 199) members of a cohort or class of prospective users of the service ([NAME], [102]) to which particular "characteristics" can properly be "objectively" attributed having regard to the "circumstances of the case" including all the surrounding circumstances: [NAME], [102], [99], [100]. 105 Where the persons in question are members of a cohort or class to which the conduct in question was directed "in a general sense" ([NAME], [103]), it is necessary to "isolate", by some "criterion", a "representative member" of that cohort ([NAME], [103]) and the "inquiry" (as to the sufficiency of the nexus), is to be undertaken with respect to "this hypothetical individual" so as to determine "why the misconception has arisen" (or is likely to arise if no remedy is granted): [NAME], [103]. 106 The "heavy burden" imposed by the statutory norm reflected in s 52 of the Trade Practices Act 1974 (Cth) (which is the statutory norm reflected in s 12DA of the [NAME] and s 18 of the ACL) suggests that where the effect of the conduct on a cohort or class of persons is in issue, the statutory prohibition "must be" regarded as contemplating the effect of the conduct on "reasonable members of the class": [NAME], [103]. 107 In the case of mass-marketed products for general use such as sportswear and perfumery products, the Court in assessing the "likely reactions" of ordinary or reasonable members of the class of prospective purchasers may well give little weight to "assumptions" by persons whose reactions are "extreme" or "fanciful": [NAME], [105]. These proceedings do not involve mass-marketed [NAME] products such as athletic footwear or perfumery. The proceedings do involve, however, financial products and services extensively marketed by [NAME] by brochures, billboards, [NAME] and webpages to persons seeking or likely to be seeking investment services especially in relation to prudent [NAME] investments in respect of a number of asset classes. 108 The proper analysis required of the [NAME] judge in this case involved isolating, by some criterion supported by the evidence in all the circumstances, a hypothetical representative member of the class to whom the conduct was (and is) directed and then testing why the contended misconceptions arose or were likely to arise by reason of the use of "[NAME]", "[NAME]", the domain names, [NAME] names and the company titles. 109 In assessing the reactions or likely reactions of ordinary or reasonable members of the relevant class of persons, the Court would be likely to give little weight to assumptions by persons whose reactions were extreme or fanciful. Reasonable or ordinary members of the class would be likely to bring an inquiring mind to the assessment of the investment products and services of [NAME] promoted to the class. The sufficiency of the nexus between conduct and the misleading (or deception) of the class, tested against the hypothetical reasonable or ordinary member, is not made good simply because the conduct causes such a person to be confused or caused to wonder about issues of connection, source or origin between the products of [NAME] and those of [NAME]. The question for the [ADDRESS] is whether the [NAME] judge applied the correct method or test (that is, whether error is demonstrated) and whether, in undertaking the assessment according to that test (if correctly identified) the [NAME] judge reached a conclusion open on the evidence notwithstanding that minds might legitimately differ about the application of the correct test in all the circumstances of the case. 110 In [NAME], their Honours put it this way at [107]: In [the relevant circumstances of the case], looking at the matter objectively, there was nothing capricious or unreasonable or unpredictable in [the [NAME] judge's] conclusion that the [relevant conduct] was likely to mislead or deceive members of the public into thinking [erroneously that the relevant product was in some way promoted, distributed or sponsored by [NAME]]. [emphasis added] 111 There are a number of difficulties with the contentions of [NAME]. 112 First, having regard to the principles identified by the [NAME] judge at [38] and [39] and the [NAME] judge's observations at [63] to the effect that [NAME] do not necessarily or practically restrict themselves to one class of investment, or to one offeror of investment opportunities (whether within an asset class or across asset classes), and the observations at [70] that the relevant [NAME] is not, in the circumstances, necessarily a [NAME] one, it seems clear enough that the [NAME] judge fully appreciated the test to be applied and, in all the circumstances of the case, identified a hypothetical representative of a class of [NAME] against which the sufficiency of the nexus was to be tested. 113 [NAME], Mr [APPELLANT] explains in his affidavit of 16 February 2015 and in his oral evidence that [NAME] [NAME] (a [NAME] [NAME]) invested $1.5 million with [NAME] (for management rather than a capital investment in any of the companies) shortly after [NAME] commenced business and before [NAME] was established. He explained that the investment was a matter of "sheer serendipity" (T, p 218, ln 16) arising out of the good relationship subsisting between Ms [NAME] for [NAME] and Mr [APPELLANT] for [NAME]. Mr [APPELLANT] gave evidence that the investment at February 2015 had a current value of $1.57 million: T, p 218, lns 4-10. Notwithstanding those circumstances, Mr [APPELLANT] accepted that [NAME] "would welcome another investment now into [NAME]'s [NAME] if it came along": T, p 218, lns 18-19. Moreover, Mr [APPELLANT] accepted that he would have welcomed such an investment "any time in between 2011 and now" (T, p 218, lns 21-22) and that, from the time of setting up [NAME]'s [NAME], he (and therefore [NAME]) "[was] happy to receive investments from [NAME] into the [NAME] as long as they [[NAME]] agreed to invest in [the] Sharia compliant investments we offered": T, p 218, lns 24-31. Mr [APPELLANT] also accepted that it remained an aim of the [NAME] to "target higher net [NAME] [NAME], through [NAME]" and [NAME] aimed, "absolutely", to "target [NAME]": T, p 218, lns 37-41. 114 [NAME], AB, Tab 10.21, is a document which bears the title "[NAME] – 12 November 2014". Page 7 of that document (p 246 of the AB) contains a page marked "Direct marketing". It sets out amended sales targets for 2014 and a series of bullet points related to "marketing efforts for the quarter". As to direct marketing, the document says this: • Amended sales targets for 2014 of $65m+. Discussions still advancing with Investment Platforms and Financial Planner groups eg. [NAME], [ADDRESS] and [NAME] • Increase in Average member balance every quarter; currently at approximately $27,500 an increase from $23,000 the quarter before. … [emphasis added] 115 As to the marketing efforts for the quarter, the document says this: • Marketing efforts have been targeting higher net [NAME] [NAME]. This has meant targeting [NAME]. … [emphasis added] 116 Apart from these matters, the marketing document identifies that [NAME] is continuing to "leverage" its existing partnerships with community groups; engage in event sponsorships in tandem with Islamic groups; continue its digital media advertising through [NAME]; continue with "regular Mosque drops around Sydney"; and adopt targeted efforts to "cover Islamic schools in NSW and VOC via school visits". 117 As to the matters at [114] and [115] of these reasons, it seems clear enough that [NAME]'s marketing efforts have been targeting higher net [NAME] [NAME], [NAME] and the likelihood is that some of the [NAME] within that group would be [NAME]. 118 [NAME], Mr [APPELLANT] accepted that on 17 August 2015, [NAME] issued a press release indicating that it has surpassed the $100 million benchmark in [NAME] invested which represented a 245% [NAME] in [NAME] under management in the financial year 2015: T, p 220, lns 15-17; lns 28-31. As to the returns on investment, Mr [APPELLANT] accepted that since its February 2013 launch, [NAME] [NAME] had achieved a total return of 60.7% to 30 June 2015: T, p 221, lns 10-15. 119 [NAME], it follows from the circumstances at [112] to [118] (apart from [116]) of these reasons that [NAME]' singular or silo point of differentiation between [NAME] [NAME] [NAME] seeking out [NAME] return/[NAME] risk [NAME] "alternative" investments (through [NAME]) on the one hand and unsophisticated [NAME] [NAME] seeking out low risk/low return investments in "traditional" asset classes on the other hand, in all the circumstances of the case, does not provide a "criterion" for isolating a "representative member" of the relevant cohort or class for the purpose of undertaking the "inquiry" as to the sufficiency of the nexus so as to determine whether and why the contended "misconception" has arisen: see [105] of these reasons. 120 This is precisely why the [NAME] judge identified, as a relevant criterion, the circumstance that "[NAME] do not necessarily restrict themselves to a single asset class" and that, in the circumstances of the case, "[NAME] is diversifying within and across asset classes and expanding the amounts of [NAME] under management": [NAME] at [69]. It also explains why the [NAME] judge accepted the submissions of [NAME] that "the relevant [NAME] is not, in the circumstances, necessarily a [NAME] one": [NAME] at [70]. 121 Sixth, [NAME] recognise that [NAME] in [NAME] are likely to do so as part of a diversification strategy to achieve balance in a portfolio of investments. In doing so, such [NAME] familiar with [NAME]'s reputation, as found, might well engage with [NAME] in relation to the main or traditional asset classes in which it provides investment services and products and bring to that engagement consciousness of the names [NAME] and [NAME]. Such [NAME] are likely to balance a portfolio of investments by considering investments in [NAME] targeting [NAME]; [NAME] (such as [NAME] [NAME] and [NAME] who would be regarded as [NAME]); financial planners; those persons interested in returns through participation in [NAME] invested in securities listed on International Securities Exchanges; securities listed on the [NAME]; and those persons interested in participating in profits derived from diversified property investments. 122 Thus it can be seen that the strict differentiation critical to [NAME]' case falls away. 123 [NAME], although the [NAME] judge placed no particular emphasis on the issue of actual confusion, there was evidence before the [NAME] judge of actual confusion. 124 Mr [APPELLANT], in an [NAME] dated 1 October 2012 to Mr [APPELLANT], the Chairperson of the [NAME], said that "it would be great to meet the [NAME] (your [NAME])" [emphasis added] and on 10 December 2012, Mr [APPELLANT] sent [NAME] an [NAME] asking him whether he would be willing to join the [NAME]. Mr [NAME] responded by saying that it would be better that he not do so as he and his colleagues felt that to do so would simply confuse people "with the names so close". Mr [NAME], [NAME]'s Business Development Director, gave evidence in an affidavit of 25 September 2014 that in 2012 [NAME] was in the early stages of identifying dental surgeries that might be acquired as part of a [NAME]. He says that on 17 December 2012 he had a conversation with Mr [NAME], an employee of [NAME] (a company that facilitates the sale of [NAME]). Mr [NAME] sought to arrange a meeting with Mr [NAME] to "potentially develop a deal flow from [Mr [NAME]] [NAME]". Mr [NAME] said: "Sure. Are you the [NAME]?" Mr [NAME] said that that was [NAME] and that he was from [NAME]. Mr [NAME] also gave evidence that on or about 7 August 2013 at a fundraising dinner hosted by [COMPANY] in Sydney, the [NAME], Mr [NAME], had a conversation with him in which Mr [NAME] said that he had met someone from "[NAME] last week" whose name was "something like [APPELLANT]" and [NAME] responded that Mr [APPELLANT] was not "connected to us" and that he "runs another company with the same name". There are similar examples of conversations. More importantly, there is also an [NAME] addressed to employees of [NAME] from the "Unlisted Unit Trust Team" at [COMPANY] by which information is sought about one of [NAME]'s [NAME] as well as information about [NAME]'s [NAME]. Plainly enough, the [NAME] regarded [NAME]'s [NAME] as part of the [NAME] administered by [NAME]. 125 Having regard to all of these matters at [112] to [124] of these reasons, I am satisfied that the [NAME] judge did not fall into error in framing the representative member of the class in the way [NAME] did. I am also satisfied that although an [NAME] in [NAME] [NAME] would likely bring an inquiring mind to investments in other [NAME] focused upon traditional asset classes, there is a real likelihood that such an [NAME], within the class of [NAME], would likely be misled by [NAME]'s use of the term "[NAME]" and "[NAME]", in the description of its [NAME] and in its presentation of itself to those with whom it deals. 126 I am satisfied that the [NAME] judge in applying the test, properly identified by [NAME], did not reach conclusions which could be described as capricious, unreasonable or unpredictable: see [110] of these reasons. I am satisfied that the [NAME] judge did not otherwise fall into error.

For these reasons, the appeal by [NAME] [NAME] ought to be dismissed. 127 As to the appeal by [NAME] in relation to Orders 3 and 4 (and related orders), I have had the benefit of reading the draft reasons for judgment of [NAME[NAME] and I agree with those reasons in support of the orders [NAME] proposes. I certify that the preceding one hundred and twenty-seven (127) numbered paragraphs are a true copy of the Reasons for Judgment herein of the [NAME].

Associate: Dated: 12 January 2017

REASONS FOR JUDGMENT

EDELMAN J:

Introduction 128 Since preparing a draft of these reasons I have had the considerable advantage of reading the reasons for decision of [NAME]. I agree with the reasons of [NAME] and the orders proposed on the first appeal (NSD 517 of 2016), with the addition of the reasons below which [NAME]'s reasons has permitted me to abbreviate. 129 The relationship between the first eight [NAME] and both respondents in the first appeal is described in detail in the reasons of [NAME]. All are companies which bear, as the key part of their trading name, the word "[NAME]". The eight [NAME] were [NAME] between July 2009 and February 2012. The [NAME], the respondents in this appeal, have operated since November 2010. 130 As [NAME] has explained, the core of the [NAME] judge's findings was a conclusion that the [NAME] on this appeal, [NAME] and [COMPANY] (two [NAME]), by their [NAME] names, corporate names, domain names, name and mark, engaged in conduct that was misleading or likely to mislead or deceive in contravention of s 12DA of the [NAME] Commission Act 2001 (Cth). For convenience and clarity, I will follow the approach taken by the counsel on this appeal of describing [NAME] as [NAME] and the respondents as [NAME] as though they were each a single entity. 131 The essence of [NAME]'s appeal to this Court was a submission that its conduct was not misleading or likely to mislead because its activities and reputation were so separate from that of [NAME]. [NAME] essentially reran the case that it had run at [NAME], although focusing only on a selection of the most favourable evidence, to emphasise the differences between the two [NAME]. Much of this involved reiterating the evidence and findings of the [NAME] judge concerning the differences including: (i) the products provided; (ii) the logos associated with the respective [NAME]; (iii) the class of [NAME] to whom the products are provided; (iv) the nature of the investments offered; (v) the persons or institutions to which the products are marketed; and (vi) the emphasis by [NAME] on Sharia compliant products. The [NAME] judge accepted these differences. However, [NAME] concluded that any separation that can be said presently to exist in the class of [NAME] in the respective [NAME] will diminish as [NAME] grows ([61]). 132 The [NAME] judge rejected [NAME]'s case for essentially two reasons in combination. The first was that the case depended upon a neat, but artificial, division between (i) classes of [NAME] within the [[COMPANY] and in the fields of [NAME] or investment management ([NAME] and [NAME]), and (ii) those who invest in [NAME] ([NAME]) and those who invest in other products including [NAME] (which was the focus of [NAME]'s activities although not [COMPANY] to [NAME]). That division does not accord with commercial reality because [NAME] managers and [NAME] invest across different asset classes and do not restrict themselves to one class of investment ([63]). The [NAME] reason why the [NAME] judge rejected [NAME]'s case was that the occupation of a common field of activity is not essential for a successful misleading and deceptive conduct claim ([64]). In this case, the characterisation by the [NAME] judge was that [NAME]'s conduct was in the [[COMPANY] generally. [NAME] had a reputation within the [[COMPANY] generally and persons to whom [NAME] directed its conduct were likely to be misled or deceived. 133 The [NAME] judge's characterisation focuses upon the particular circumstances of the case and the persons to whom [NAME]'s conduct was generally directed. Even with only the snapshots of evidence that we were provided with on this appeal, the [NAME] judge's characterisation was supported by the evidence, including evidence that some [NAME] were actually misled. The appeal must be dismissed. 134 A [NAME] appeal was heard concurrently with the appeal by [NAME]. [NAME] separately appealed from the terms of the injunctions granted by the [NAME] judge (NSD 567 of 2016). With one exception, that appeal must also be dismissed. The exception concerns the grant of liberty for the parties to apply to vary one part of the [NAME] judge's orders by consent. That potential variation allows the parties to confer and, if possible, agree to the wording of the disclaimer ordered by the [NAME] judge. That wording was not the subject of argument on this appeal and leaves some discretion to [NAME]. I consider the order to have been within the scope of [NAME]'s discretion. However, if the parties are able to agree the appropriate form of words of disclaimer, which could avoid any potential for further dispute, then the agreed form would be the preferable order.

THE APPEAL BY [NAME]

The [NAME] judge's characterisation of the relevant [NAME] 135 In [NAME] v [NAME] [COMPANY] [2000] HCA 12; (2000) 202 CLR 45, 83-84 [98], the [NAME] referred to remarks of [NAME] in [COMPANY] v [NAME] [COMPANY] [1978] HCA 11; (1978) 140 CLR 216, 228, that although persons had been misled it was necessary "to inquire why this misconception has arisen in the minds of others". In [NAME], the [NAME] concluded that the [NAME] judge's conclusion about misleading or deceptive conduct was not "capricious or unreasonable or unpredictable" (88 [107]). The [NAME] judge's conclusion was that placing the "[NAME]" product with other sports fragrances in pharmacies was likely to mislead or deceive members of the public into thinking that the "[NAME]" product was in some way promoted or distributed by [NAME] itself or with its consent and approval. 136 The reference by the [NAME] to the [NAME] judge's conclusion not being "capricious or unreasonable or unpredictable" involves a recognition of the advantages of the [NAME] judge in relation to issues of credibility, the "feeling" of the case, and the consideration of the entirety of the evidence over a longer hearing period: [NAME] v Percy [2003] [NAME]; (2003) 214 CLR 118, 125-126 [23] (Gleeson CJ, [APPELLANT] and [NAME]). See also [COMPANY] v McDermott [2016] [NAME]; (2016) 331 ALR 550, 558-559 [43] (the Court). 137 [NAME] for [NAME] accepted that some "deference" should be accorded to the [NAME] judge (ts 6). A better label, without the connotations of servility, might be "judicial restraint", the extent of which will vary depending upon the advantages of the [NAME] judge. In this case, the [NAME] judge had some advantages but they should not be overstated, especially as credibility issues were not involved. [NAME] submitted that even with recognition of some restraint, the [NAME] judge should have concluded that no person in the relevant group of [NAME] would be likely to be misled or deceived. 138 As the [NAME] explained in [NAME], where the [NAME] are not identified [NAME], but are members of a class to which the conduct in question was directed in a general sense, it is necessary to isolate by some criterion a representative member of that class (85 [103]). The submissions by [NAME] were an attempt to characterise that representative member with such a degree of specificity that the representative member could not be misled or deceived into assuming any association with [NAME]. 139 [NAME] submitted that the relevant class of [NAME] was "[NAME] seeking to invest in low-risk, low-return Sharia compliant [NAME] and related investment products in traditional asset classes (such as listed securities, property and cash)". During oral submissions, [NAME] for [NAME] submitted that the class to whom [NAME]'s conduct was directed must be narrowed even further to be [NAME], who are not [NAME], seeking to invest in low risk, low return, Sharia compliant [NAME] and related investment products in traditional asset classes (such as listed securities, property and cash) (ts 43). In contrast, he submitted, the [NAME] judge had concluded that [NAME]'s customers were [NAME], such as [NAME] and [NAME], and their [NAME] (ts 25). 140 The [NAME] judge accepted that there were numerous differences between various aspects of [NAME] and [NAME] including the nature of the investments offered. [NAME] also accepted that persons making investments of the quantum invested in [NAME]'s [NAME], would take care in the object of their investment. Although those differences were reiterated at length in this appeal, it is sufficient to say that I agree with the comments of [NAME] at [61]-[77] and [81]. Despite the differences there were also commonalities. In particular: (1) As the [NAME] judge observed at [58], [NAME]'s concerns were largely directed to the future conduct of [NAME] in the light of its rapid [NAME] and likely expansion beyond its existing [NAME] base, which already includes institutional [NAME]. (2) As the [NAME] judge also observed at [58], [NAME] and [NAME] both operate through [NAME] managers and diversification into the higher risk category of property investment. (3) At [60], the [NAME] judge concluded that [NAME] had agreed, in side letters with specific [NAME], to limit the nature of investments in accordance with what it termed "ethical investing", including some limitations that accord with aspects of Sharia law. [NAME] had not engaged in any Sharia compliant investing, it could not be said that [NAME] had decided to remove itself from offering Sharia compliant investments. (4) The evidence suggested that there may not be a clear line in terms of marketing and reputation between Sharia and non-[NAME]. [NAME] had described its [NAME] as "[NAME]-ethical" to distinguish them from "ethical" [NAME] ([NAME] ts 230-231). This creates the impression of a continuum which fits neatly with [NAME]'s marketing of its [NAME] involving statements that "Money and Morals do mix", "Socially Responsible Investing", "investments that benefit society", and a statement from a [NAME] that "Islamic Finance is attractive to [NAME] of all faiths". 141 However, the [NAME] judge did not accept a characterisation at the extreme level of specificity asserted by [NAME]. The finding of the [NAME] judge was effectively that the representative members of the class to whom [NAME]'s conduct was generally directed were [NAME] seeking to invest [NAME] in the [[COMPANY] in the fields of [NAME] or investment management, or persons advising those [NAME]. 142 Questions of characterisation, including the level of specificity of the characterisation, are matters which are closely affected by the facts of the case. Analogies will not often assist. For instance, [NAME] attempted to give an analogy of conduct by a bicycle manufacturer not being misleading or deceptive to [NAME] of motorcycles even though bicycles and motorcycles might both be within the same genus of two wheeled cycles. But, as [NAME] for [NAME] observed, a reasonable [NAME] might easily assume that the maker of a Harley Davidson bicycle did so under licence from the motorcycle manufacturer (ts 59). 143 With respect to the [NAME] judge, in the circumstances of this case it was accurate for [NAME] to characterise the representative [NAME] and financial adviser to whom [NAME] directed its representations as persons seeking to invest, or to advise [NAME], within the [[COMPANY] and the field of [NAME] and investment management. As the [NAME] judge found, [NAME]'s [NAME] did not restrict themselves to a single asset class, and [NAME] itself was diversifying within and across asset classes and expanding the amounts of [NAME] under its management. An example of the evidence before [NAME] was a newsletter from [NAME] in May 2015 for potential [NAME] which was not confined to [NAME]. It contained a market overview, and described the performance of [NAME]'s [NAME], property [NAME], Islamic cash management [NAME], and [NAME]. The newsletter also referred to [NAME] as a [NAME] [NAME] that had acquired a 19% stake in [COMPANY], which supports an inference that [NAME] would have come to the attention of [NAME]'s prospective customers, even if the precise nature and scope of all its activities had not. 144 It is far too narrow, and specific, to describe [NAME]'s representative [NAME] to whom its conduct was directed as "[NAME], who are not [NAME], seeking to invest in low risk, low return Sharia compliant [NAME] and related investment products in traditional asset classes (such as listed securities, property and cash)".

The reputation of [NAME] within the relevant class 145 The [NAME] aspect to [NAME]'s submissions was that [NAME] had no reputation within the relevant class of [NAME] to which [NAME]'s conduct was directed. [NAME] submitted that the reputation of [NAME] was confined to a reputation as a successful [NAME] [NAME] manager amongst "[NAME], such as [NAME] and [NAME], and their [NAME]". [NAME] submitted that the [NAME] judge had made such a finding. Therefore, [NAME] submitted, its conduct could not be misleading or deceptive. 146 I do not accept this submission. The [NAME] judge made no such finding. At [9] to [11], the [NAME] judge described how [NAME] had, and has, a reputation "in the [COMPANY] and [NAME]". [NAME] explained that [NAME]'s reputation derives from: (1) its own activities; (2) its approaches to [NAME] and financial advisers; (3) awards conferred on it including from the [NAME] and [COMPANY]; (4) its activities in raising money for investment in its [NAME] (which included the use of promotional and marketing materials); and (5) media reports including in the [NAME] and [NAME]. 147 The submission by [NAME] about the allegedly [COMPANY] reputation of [NAME] involved equating the [NAME] judge's description of (1) (ie [NAME]'s own activities) with the entire extent of [NAME]'s reputation. [NAME] for [NAME] submitted that the entire reputation of [NAME] was described by the [NAME] judge when she said (at [18]) that [NAME] offers [NAME] risk, [NAME] return investments with long term commitment of [NAME] with no certainty of returns, and that [NAME] and prospective [NAME] are [NAME] who consider investments carefully before proceeding. But [NAME]'s reputation also derived from (2), (3), (4), and (5) above. 148 As for the reputation of [NAME], [NAME] concluded at [69] that the class of [NAME]'s [NAME] are [NAME] generally, not merely those within the "mum and dad" category. The [NAME] who are interested in [NAME] "do not necessarily restrict themselves to a single asset class" ([69]). At [70], [NAME] distinguished [COMPANY] v [COMPANY] [2015] FCA 882; (2015) 115 IPR 67 which was a case where the relevant [NAME] were large institutional [NAME] who would not have been misled. She distinguished that case on the basis that [NAME] did not aim its activities at [NAME]. In other words, and consistently with [NAME]'s conclusion at [69], [NAME] was, and is, concerned with [NAME] generally, not necessarily mum and dad [NAME]. In this respect, the reasons of [NAME] at [113]-[115] refer to evidence on this appeal. [NAME] concluded that less [NAME] [NAME] might well be misled. 149 The [NAME] judge's findings concerning reputation and the misleading effect of [NAME]'s conduct were amply supported by the evidence. Several examples can be given: (1) [NAME]'s reputation derived in part from references to it in the media including 227 articles published before June 2011 including articles in the [NAME], [NAME] via Financial News, and the [NAME]. Although these articles sometimes referred to [NAME] at the outset, the rest of the article often referred to the business simply as "[NAME]". (2) There was evidence that around half of [NAME] (including [NAME] in [NAME]) used an adviser ([NAME] ts 162). The evidence did not support the assertion by [NAME] that advisers concerning [NAME] did not advise on other investments. There was also evidence from Mr [NAME], a partner from [COMPANY], of a degree of integration between [NAME] and [NAME]. His [NAME] invested in [NAME] but the [NAME]'s [NAME] were typically [NAME] [NAME]. (3) As the [NAME] judge explained, and as [NAME] explains at [124], there was evidence of confusion between [NAME] and [NAME] among [NAME]. This evidence supports the inference that [NAME]'s reputation extended to [NAME] who knew of [NAME]. The [NAME] judge referred to the evidence of: (a) conversations such as one in which a person involved in the sale of [NAME] asking an employee of [NAME] "are you the [NAME]?"; (b) a telephone enquiry to [NAME] asking to speak to Mr [APPELLANT] of [NAME]; (c) a comment of the then [NAME] to the chairperson of [NAME] at a dinner indicating that he had met someone from "[NAME]", being Mr [APPELLANT]; (d) other comments to the chairperson of [NAME] from business associates connecting Mr [APPELLANT] to [NAME]; and (e) an [NAME] addressed to employees of [NAME] from the Unlisted Unit Trust team at [NAME] seeking information about a [NAME] [NAME] as well as about [NAME]'s [NAME]. 150 When [NAME]'s conduct is assessed by reference to the representative [NAME] to whom its conduct was directed, the reputation of [NAME] had the effect that [NAME]'s conduct was misleading or likely to have misled or deceived. There was a real likelihood that less [NAME], [NAME], and advisers would be misled.

Conclusions on the appeal by [NAME] 151 Many of the arguments on this appeal were, essentially, reruns of the same (well presented) arguments which [NAME] made before the [NAME] judge. She heard the evidence and submissions over five days. She saw the context of the evidence and the demeanour of the witnesses. Her conclusion was based upon an evaluative assessment which was dependent upon characterising the degree of association between the operations of [NAME] and [NAME] in the marketplace. That characterisation was made with an eye to commercial reality rather than by focusing upon fine, artificial distinctions between classes of [NAME] and types of product in a diverse industry. [ADDRESS] reheard the matter in a one day appeal. We were referred to a small subset of the evidence. However, even without the advantages of the [NAME] judge I consider her conclusion to be correct. That conclusion was that there was sufficient likelihood of those [NAME] (ie the representative [NAME]) and those advising them being misled or deceived into believing that [NAME]'s [NAME] were those of [NAME] or were part of, or associated with, or managed by, or connected to [NAME] by: (1) the name and mark "[NAME]"; (2) the corporate names "[NAME] ([COMPANY]" and "[COMPANY]"; (3) the names of [NAME]'s [NAME] (when compared with the [NAME] [NAME] called [NAME] (or [NAME]) and [NAME], III, IV and V), being: (a) [NAME]; (b) [NAME]; (c) [NAME] [NAME]; (d) [NAME]; and (e) [NAME]; (4) [NAME]'s domain names (when compared with [NAME] for [NAME]), being: (a) [NAME]; (b) [NAME].com.au; (c) [NAME]; (d) [NAME]; and (e) [NAME].

THE APPEAL BY [NAME] 153 A [NAME] appeal (NSD 567 of 2016) was brought by [NAME]. [NAME] submitted that the [NAME] judge's orders were too narrow. The four respects in which the [NAME] judge's orders were said to be too narrow, and the four grounds of appeal, were as follows: (1) the injunctions in orders 3 and 4 should have been unqualified, permanently restraining the [NAME], in trade or commerce, from offering to provide, providing, advertising or marketing in Australia any investment services or products under and by reference to the name "[NAME]" or "[NAME]", or any name substantially identical with or deceptively similar to the name "[NAME]" or "[NAME]"; (2) the disclaimer in order 4 should not have been included; (3) orders requiring deregistration of the offending domain names and [NAME] names should have been made in light of the [NAME] judge's reasons at [90]; and (4) an order should have been made requiring the [NAME] respondent to deregister the name "[NAME]" in light of the [NAME] judge's finding at [89]-[90]. 154 The injunctions ordered by the [NAME] judge in orders 3 and 4, and the orders for name changes and deregistration in order 5, were as follows:

3. The [NAME], by themselves, their servants or agents, be restrained from, in trade or commerce, offering to provide, providing, advertising or marketing in Australia any investment services or products under and by reference to: (a) [NAME] ([COMPANY]; (b) [COMPANY]; (c) any of the following names: (i) [NAME]; (ii) [NAME]; (iii) [NAME]; (d) any of the following domain names: (i) [NAME]; (ii) [NAME]; and (iii) [NAME]; or any name substantially identical with the names in (a)-(d).

4. The [NAME], by themselves, their servants or agents, be restrained from, in trade or commerce, offering to provide, providing, advertising or marketing in Australia any investment services or products under and by reference to: (a) [NAME]; (b) [NAME]; (c) [NAME] [NAME]; (d) [NAME] business name; (e) the domain name [NAME].com.au; or any name substantially identical with the names in (a)-(e) without: (f) including the Respondents' logo and stating clearly and prominently, and reasonably proximately (eg not by way of footnoted text) to where any such name appears, including in any webpage, product disclosure statement, or advertising or promotional materials: "Neither [[NAME]] nor any of its products is associated or affiliated with [COMPANY]", and, in the case of a radio commercial, television, video advertisement, or promotional appearance also stating the same by way of a clear and prominent spoken statement of at least 6 seconds; or (g) otherwise clearly distinguishing its business from the business carried on by the Applicants under the name [COMPANY].

5. The [NAME], within 28 days, take steps necessary to: (a) change the names of the [NAME], [NAME] and [NAME] to comply with Order 3 above; (b) deregister the domain names [NAME], [NAME], and [NAME]; and (c) deliver up on oath to the solicitors for the Applicants, or as they may direct, for destruction all printed materials including business cards, marketing flyers, product disclosure statements, advertising or promotional materials: (i) in which the names in Order 3 above, or any name substantially identical with any of those names, appears; or (ii) in which the names in Order 4 above, or any name substantially identical with any of those names, appears without the logo and disclaimer referred to in, or otherwise complying with, Order 4, in the possession, custody or control of the [NAME]. 155 Unlike the general use of "[NAME]" in the names in order 3, the terms of order 4 permit the use of the name "[NAME]" when used with "[NAME]" provided that there was the differentiation from [NAME] in the terms [NAME] described. 156 The reason for the difference between order 3 and order 4 is plain. The [NAME] judge must have formed the view that the disclaimer would be sufficient to remove any likelihood of "[NAME]" being misleading or deceptive. 157 [NAME] for [NAME] submitted that the disclaimer in order 4 would not remove the misleading effect of references to "[NAME]" when those references were made orally (ts 78). The same is true of representations by [NAME] parties such as in newspaper reports. But, at least on the evidence on this appeal, it seems clear that the possibility merely of repetition orally of [NAME], or [NAME] party publication, would be unlikely to rise to the level of misleading or deceptive conduct rather than transitory confusion, especially in circumstances in which any webpage, product disclosure statement, advertising and promotional materials would all include [NAME] logo and a statement that it is not associated or affiliated with [NAME]. Indeed, this must have been the conclusion reached by the [NAME] judge upon her assessment of the whole of the evidence. 158 [NAME] then submitted that disclaimers should only be used in particular circumstances (ts 79). [NAME] relied upon the remarks of [NAME] in [COMPANY] v [NAME] (1984) 4 FCR 460, 472 which were applied by [NAME] and [NAME] in [NAME] v [NAME] (1994) ATPR 41-308: There is one point, however, on which I respectfully differ from [NAME], and it is the subject of the cross-appeal. [NAME] ordered that the company be restrained in effect from carrying on its business under any name including the word "Bridge" without clearly distinguishing such business from the business carried on by the [NAME] under the name "[NAME], Son and Shepherd". [NAME] appears to have had in mind the approach taken by the [NAME] in [NAME] v [NAME] of [COMPANY] [1929] [NAME]; (1929) 42 CLR 352 where the relief granted [w]as an injunction restraining the defendant from using the words "[NAME]" or "[NAME]" without clearly distinguishing such business from the business carried on by [NAME] ([RESPONDENT]. The imposition upon a defendant of the requirement that it disclaim connection with the plaintiff or its business is not a course that has been generally followed in recent times. It may be appropriate in a case such as the [NAME] case where a [NAME] was required to distinguish its business from that of a [NAME] whose name was a household word. But w[h]ere two organisations are engaged in the same industry and neither of them is a commercial giant, it may be counter productive to require [NAME] to expressly disassociate himself from the business of the older established enterprise. It may suggest that there is something disreputable or undesirable about the [NAME] from whose business [NAME] is seeking to distinguish himself. Also courts cannot control the way in which people other than the parties will refer to the company, so that the extent to which a disclaimer would serve any useful purpose is I think open to serious question. I would therefore vary the orders of the [NAME] judge to the extent necessary to remove the disclaimer. 159 These considerations will often be decisive reasons to refuse to order a [COMPANY] injunction coupled with a mandatory disclaimer. But in some cases the more [COMPANY] injunction with a disclaimer might still be a possible exercise of discretion. The terms upon which an injunction is ordered in order to protect a claimant's rights only to the extent necessary is the [NAME] sense in which an injunction is said to be discretionary. The other sense is the decision to award an injunction at all rather than to leave a claimant to a money award such as damages where that is sufficient to protect the rights of the claimant: [redacted] 160 An example of the exercise of a discretion to order an injunction in more [COMPANY] terms is the decision in [NAME] v [NAME] (Australia) [COMPANY] [1929] [NAME]; (1929) 42 CLR 352. In that case, [NAME] (a well-known, large [NAME]) sought to restrain a small [COMPANY] from using the words "[NAME]" or "[NAME]". The [NAME] was widely known in Australia and had widely advertised a change from a previous [NAME] to a new [NAME]. In June 1926, Mr [NAME] commenced trading with the names "[NAME]" with the intention to lead the public to believe that his company was the new [NAME]. Mr [NAME] sought to resist an injunction by defences including laches. The [COMPANY] did not complain to Mr [NAME] until July 1926 and did not commence litigation until December 1927. The defence of laches failed. However, as [NAME[NAME] observed at 370, the injunction which was ordered did not restrain Mr [NAME] absolutely from using the name "[NAME]". Although [NAME[NAME] said that the injunction might have done this, all of the Court considered that the more [COMPANY] injunction was still an appropriate order. The terms of the [COMPANY] injunction ordered by the [NAME] judge were varied to accommodate situations such as where Mr [NAME] used the name merely as a signature. The disclaimer ordered was that Mr [NAME] could not use the names "without clearly distinguishing such business from the business carried on by [the [COMPANY]'s [NAME]]" (361). Justice Dixon speculated, at 370, that the more [COMPANY] injunction might have been made because of the potential damage that it could cause to Mr [NAME] business arising from the delay in bringing the action (albeit not a delay which amounted to laches). The delay in making a complaint was [NAME] short but the delay in bringing an action was a year and a half. 161 Other, more recent, cases have also made [COMPANY] injunction orders coupled with disclaimers. An example is the decision of [NAME] in [COMPANY] v [NAME]) [COMPANY] [2004] FCA 1394; (2004) 213 ALR 153, 180 [139] which did not prohibit the use of the offending name but required the [NAME] to display signs explaining a lack of association with the applicant restaurant, for an appropriate period, in a prominent location, and clearly visible from the exterior of its restaurant. A similar disclaimer was required to feature in the respondent's advertising material. A key factor in making this award was the [COMPANY] harm that the applicant might suffer if the respondent were to use the offending characters in its signage (180 [136]). 162 In this case, "[NAME]" was registered as a business name on 15 July 2011, with a press release issued about its name on 5 August 2011. A composite [NAME] trade mark application was lodged, and [NAME] page created, in March 2012. A letter of demand was sent to [NAME] in April 2013. This litigation was subsequently commenced by [NAME] on 6 May 2014, almost three years after [NAME] was registered as a business name. 163 It would have been open to the [NAME] judge to restrain [NAME] by a more absolute form of injunction, without any required disclaimer. However, I do not consider that the injunction ordered by the [NAME] judge was outside the scope of proper orders to protect the rights of [NAME], particularly having regard to: (i) the time that had elapsed; (ii) the lack of any evidence to support any inference that Mr [APPELLANT] intended to deceive or mislead anyone to believe that [NAME] was associated with [NAME] ([55]); and (iii) the [COMPANY], or lack of, harm to [NAME] if the disclaimer were ordered. I have weighed against these factors the serious concerns enunciated by [NAME] in [NAME], but on the evidence before the Court I do not consider (and the [NAME] judge did not conclude) there to be a considerable likelihood of damage to reputation to [NAME] by an appropriately worded disclaimer. The orders of the [NAME] judge also contemplate (in order 4(g)) alternative wording if any difficulty were caused by words explaining a lack of association or affiliation. It may be that the parties can agree to an alternative form of wording, but since we received no submissions on any form of wording within 4(g), it is appropriate that the [NAME] judge's orders be varied to add an additional order 4(h) to allow the parties liberty for four weeks to apply to a single judge of this Court to amend the form of order in 4(f) or 4(g) by consent. 164 Another submission by [NAME] was that there was a reasonable apprehension of a future infringement by the use by [NAME] of a deceptively similar name. It relied upon the decision in [NAME] v [COMPANY] (No 2) [2015] FCAFC 153; (2015) 115 IPR 421. Two points should be made about that decision. The first is that the order made was to prevent the use of a mark with an immaterial variation from the infringing mark. As I explain below, it was not an order replicating the terms of the statute restraining the use of a "deceptively similar" mark. The [NAME] point is that the reason for the order, expressed at [180], was the [NAME] risk of future infringement including: (i) it being "abundantly clear" that the respondent intended to use the marks to the "fullest extent possible"; (ii) his attitude during the appeal of belligerence, even defiance, and disrespect for his opponents and the Court; and (iii) his conduct in frustrating attempts to serve him with Court process. Those circumstances are a [NAME] long way from the respectful and proper conduct during this appeal by [NAME], with no indication that it will not comply fully with orders of the Court, and every indication that it will act to avoid the possibility of future contraventions. 165 In any event, the remarks of the [ADDRESS] in [NAME] are apt (458 [181]-[182]): Nevertheless, we are of the view that the proposed order, which merely repeats the prohibition in the Act, is not appropriate. The Act already prohibits the use of a mark that is substantially identical, or deceptively similar, to a registered trade mark. Litigation ensues because parties do not agree on whether those conditions are met. To that extent, an injunction in the form requested by the [NAME] parties is uncertain and susceptible to subjective determination as to whether the order is complied with. For this reason we are not persuaded that making an order in these terms would ensure finality of litigation. Furthermore, it would add nothing to the existing legal position but would expose [the respondent] to the risk of being in contempt of court. While an injunction in the form of the proposed order can be made, the "practice of granting injunctions in a form which reproduces, with the risk of sanctions for contempt, that which an Act forbids is to be discouraged": [COMPANY] v [COMPANY] (2006) 150 FCR 110; [2006] FCAFC 41 at [40]–[42] (Branson J, [NAME] and [NAME] JJ agreeing at [53] and [57] respectively). 166 For these reasons too, and contrary to the submissions of [NAME], the [NAME] judge was correct to avoid the extension of the injunction also to any other "deceptively similar" name. As Gleeson CJ, [APPELLANT], [NAME] said in [COMPANY] v [NAME] [COMPANY] [2001] HCA 13; (2001) 205 CLR 1, 26 [60], "[a]n injunction expressed in terms which leave unclear the form of conduct which will expose a party to the consequences of breach of a court order, and which beg the major question in issue in the case, is inappropriate".

Grounds 3 and 4: whether deregistration should have been ordered 167 Apart from the issue of the disclaimer, addressed above, [NAME]'s submissions in relation to these grounds were [NAME] brief. Its point was essentially that the [NAME] judge's orders did not match her reasons. [NAME] submitted that having found in her reasons that [NAME] names and domain names should be deregistered, the [NAME] judge should have made orders to that effect. 168 The [NAME] judge ordered that, within 28 days, [NAME] change the names of the three [NAME] ([NAME], [NAME], and [NAME]), and deregister the domain names [NAME], [NAME], and [NAME]. 169 However, the [NAME] judge did not order a name change or deregistration of the business name [NAME], [NAME] names [NAME] and [NAME] [NAME], or the domain name [NAME].com.au. 170 The relevant reasons of the [NAME] judge were at [89]-[90] as follows (with emphasis added): The conclusion that the [NAME] have engaged in conduct which was misleading or likely to mislead or deceive follows from the use of "[NAME]" and the names of the [NAME] and domain names which use the name "[NAME]" together with generic words such as "investments", "[NAME]" and the like. It is this use that is likely to lead [NAME] to believe that the [NAME], products or services are those of, or associated with, or affiliated with, [NAME]. However, this does not mean that all use of the word "[NAME]", alone or in association with other words, or in conjunction with a disclaimer, would result in the misleading of [NAME]/[NAME]. [NAME] is entitled to a declaration and orders concerning the conduct of the [NAME] and of the [NAME]. It is also entitled to orders that within a reasonable time, which would be of the order of 28 days, the [NAME], or, if appropriate, another of the respondents, take steps in respect of the deregistration of the offending domain names and the names of the [NAME]. 171 The orders made by the [NAME] judge were not inconsistent with these reasons. In the context of the previous paragraph, the [NAME] judge's reference to the offending domain names and [NAME] names was a reference to those domain names and [NAME] names which would continue to offend without the disclaimer. Further, by focusing only upon [89] and [90] of the [NAME] judge's reasons, [NAME] neglects the context of that discussion which was set out at [87]-[88]. There, the [NAME] judge explained that the orders sought by [NAME], including changes of name and orders deregistering domain names and the business name, were too wide. 172 Since I have concluded that the disclaimer condition upon the injunction was not an error, these two grounds of appeal must also be dismissed. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edelman.

Associate: Dated: 12 January 2017

REASONS FOR JUDGMENT

MARKOVIC J: 173 There are two appeals before the Court: one brought by [NAME] ([COMPANY], [APPELLANT], [COMPANY], [APPELLANT[COMPANY] and [APPELLANT] (collectively the [NAME]); and the [NAME] brought by [COMPANY] and [COMPANY] (collectively the [NAME]). 174 I have had the benefit of reading the draft reasons for judgment of [NAME] in relation to the appeal brought by the [NAME] and I agree with those reasons and the orders proposed by [NAME]. I have also had the benefit of reading the draft reasons for judgment of Edelman J in relation to the appeal brought by the [NAME] and I agree with those reasons and the orders proposed by [NAME]. I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.

Associate: Dated: 12 January 2017

SCHEDULE OF PARTIES NSD 517 of 2016

[NAME] [NAME] Appellant: [redacted] [NAME] Appellant: [redacted] Sixth Appellant: [redacted] [NAME] Appellant: [redacted] [NAME] Appellant: [redacted] Ninth Appellant: [redacted] [NAME] Appellant: [redacted]