IPwars.com

Mainly intellectual property (IP) issues Down Under

Coke v Pepsi – “second” look

Last week, Besanko J dismissed Coca-Cola Co’s claims that PepsiCo’s “Carolina” bottle shape infringed Coke’s trade marks, and was passing off and misleading or deceptive conduct.

Trade mark excellence

When choosing a trade mark, choose something allusive or suggestive: The owner of Dental Excellence loses his trade mark registration in a fight against south perth dental excellence

Bugatchi gets Bugatti-ed

While I thought that Buagatti was a car brand, it turns out it is (also) since 1989 a registered trade mark in Australia for,amongst other things, men’s clothing. Originating in Canada, there is also a line of men’s clothing under the label BUGATCHI UOMO. Products bearing this brand have been coming into Australia since 1991. Shine Forever, however, has been importing the line since 2010. Tracey J has ruled that Shine Forever has been infringing the BUGATTI trade mark.

Affinage and A.S.P. 2

For completeness, I should note that IHC UK has appealed Logan J’s decision earlier this month finding that it infringed IHC Australia’s registered trade mark for AFFINAGE. Summary here. Interestingly, Logan J has granted a stay of his order to remove all references to A.S.P. from IHC UK’s Web site at www.affinage.com. You will recall that IHC UK owns AFFINAGE outside Australia and had adopted A.S.P. at least partly to deal with the fact.. Read More

Using a sign on the internet

Logan J has granted injunctions against International Hair Care UK’s  use of AFFINAGE (and other trade marks) on its global website for (in effect) infringing International Hair Care Australia’s trade marks registered in Australia. The facts throw up the interesting question of what happens when 2 different people own the same trade mark in different countries and try to use it on the internet. Facts IHC UK is the owner of the registered.. Read More

A case of (un) parallel imports

BTB holds a licence to make and sell “Greg Norman” branded clothing in India from Greg Norman Collection Inc (GNC). GNC is the “head licensor” of the “Greg Norman” trade marks registered in, amongst other places, India and Australia. By clause 2.4 of the licence agreement, BTB agreed not to sell the branded clothing it made outside India without GNC’s consent: LICENSEE acknowledges that this License is limited to the TERRITORY defined herein,.. Read More

Appeal sinks luscious LIPS

One month after the appeal was heard, the Full Court has rejected Nature’s Blend’s appeal that Nestlé used Luscious Lips as a trade mark. Nature’s Blend argued first that the trial judge had wrongly focused on the character of Nestlé’s use instead of the proper meaning of the Nature’s Blend mark. As the mark was registered for all confectionery, not just “lips”, it was said to be inherently distinctive. The Full Court, however,.. Read More

Kit Kat shape trade mark

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Nestlé has successfully appealed Aldi’s opposition to registration of a 4 bar Kit Kat as a trade mark: Societe Des Produits Nestle S.A. v Aldi Stores (A Limited Partnership) [2010] FCA 218 The trade mark is TM No. 822780 for this: The endorsement reads: The trade mark consists of the shape of the goods, being four bars attached to one another by a thin base as depicted in the representations attached to the.. 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 Nature’s Blend began.. 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 commonly displays a.. Read More