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Mainly intellectual property (IP) issues Down Under

Winnebago the damages or a reasonable royalty Down Under

Yates J has ordered the respondents pay a 1% royalty for passing off their RVs as Winnebago’s

Nappyland, Nappy Land and napplyland.com.au

A registered trade mark does not always trump passing off or a claim for contravention of the Australian Consumer Law.

Winnebago 2: the disclaimer

The Full Court has now ruled on the form of the disclaimers required to avoid injunctions against use of the Winnebago trade marks.

The power of a registered trade mark

If you have tried to buy, sell or rent property in Australia in the last 10 years (at the least!), like some nearly 7 million other Australians you have no doubt come across realestate.com.au, the web-portal run by REA Group. Real One also competes in that space.[1] Bromberg J has held that Real One’s logos: did not “pass off”[2] REA Group’s logos: Nor did they infringe REA Group’s registered trade.. Read More

Winnebago loses half an appeal

The Full Court has partially allowed an appeal from Foster J’s decision to order Knott Investments to stop using the Winnebago trade marks for “campers” or RVs not made by Winnebago. As a result, Knott can continue to use “Winnebago” if it can make it clear it is not associated with the Winnebago company. Some facts From about 1959, Winnebago had been making and selling its RVs under that brand.. Read More

Another get up not made out

Mitre 10 has been refused an interlocutory injunction to stop “Masters” using a blue, white and grey get-up for a hardware store. Macaulay J was not persuaded there was a serious question to be tried and, even if there were, the damage to “Masters” resulting from an injunction far outweighed the damage to Mitre 10’s goodwill if no injunction were granted. His Honour itemised a number of reasons why the.. Read More

Injurious falsehood and also passing off

The tort of injurious falsehood (sometimes called malicious falsehood or even trade libel) has been largely superseded (but not totally extinguished) by passing off and the modern wrongs against misleading or deceptive conduct. In a helpful, practical primer, Jagot J has had to explore its operation as one of the issues in the Jack Brabham Engines case. There is also an elementary lesson to learn in passing off. In overview, the case concerned.. Read More

Luscious Lips confectionary

Sundberg J has dismissed Nature’s Blend’s action against Nestlé for infringement of its LUSCIOUS LIPS trade mark, passing off and misleading or deceptive conduct by selling Allens RETRO PARTY MIX. Nature’s Blend, which was principally a supplier of veterinary products registered LUSCIOUS LIPS in respect of confectionery. Initially, at least, it gave chocolates away branded with the trade mark and a device to promote its business. Around the same time as.. Read More

Coffee plungers, tea pots, designs and passing off

The Federal Court, Middleton J, has rejected Bodum’s allegations that the sale of the Baccarat Venice coffee plunger and Euroline’s Classic coffee plunger passed off Bodum’s Chambord coffee plunger or was otherwise misleading or deceptive; or Baccarat’s Devon teapot passed off Bodum’s Assam Tea Press or was otherwise misleading or deceptive. Playcorp Group of Companies Pty Ltd v Peter Bodum A/S [2010] FCA 23 The judgment includes depictions of the.. Read More

Maltesers v Delfi malt balls

Mars’ appeal against the rejection of its claims of trade mark infringement and misleading or deceptive conduct have been tersely rejected. Images of the product Mars complained about here. The Full Court noted: 9     It is not in dispute that the evidence established that: •    confectionary is commonly packaged in primary colours and that red, in various shades, is a predominant and common, indeed ubiquitous, colour; •    confectionary packaging.. Read More