2012 IPSANZ Annual Conference Seminar ... - List G Barristers

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Get-up cases – design of product and packaging • Shape trade marks registrable since 1995 TMA • But many rights holders still lack such registration • Only avenue for protection is passing off and s 52 TPA / s 18 ACL • Review of Australian product design get-up cases: • Widely inconsistent results • Especially in the last couple of years
Parkdale v Puxu (1982) 149 CLR 191 • Puxu sold chairs of distinctive appearance and design • Parkdale sold chairs which closely resembled Puxu’s • Parkdale’s chairs had a small label with Parkdale’s brand Gibbs CJ: • Chairs substantially the same, and deliberately copied • But does not follow that Parkdale intended to mislead • S 52 TPA should be given its plain and natural meaning • Not enough that Parkdale’s conduct is confusing or causes people to wonder [cf deceptively similar TMs] • Purchasers of furniture for $1,500 would look for a label • If an article is properly labelled to name its manufacturer, then close resemblance to another article will not mislead an ordinary reasonable person
Page 1 and 2: IPSANZ Annual Conference September
Page 3 and 4: Campomar Sociedad v Nike (2000) 200
Page 5 and 6: Statutory prohibitions against misl
Page 7 and 8: Overlap between s 52 TPA / s 18 ACL
Page 9 and 10: Relative advantages of s 52 TPA / s
Page 11 and 12: New Zealand perspective: s 9 FTA an
Page 13 and 14: Passing off not limited to “trade
Page 21: Comparison: passing off and trade m
Page 25 and 26: Parkdale v Puxu (1982) 149 CLR 191
Page 27 and 28: Interlego v Croner (1992) 39 FCR 34
Page 29 and 30: Dr Martens Cases Dr Martens v Figgi
Page 31 and 32: Philips v Remington (2000) 100 FCR
Page 33 and 34: Sydneywide v Red Bull (2002) 55 IPR
Page 35 and 36: Mars Australia v Sweet Rewards (200
Page 37 and 38: Reconcile Red Bull and Maltesers de
Page 39 and 40: Reconcile Red Bull and Maltesers de
Page 41 and 42: Bodum v DKSH (2011) 280 ALR 639 •
Page 43 and 44: Playcorp v Bodum (2010) 84 IPR 542
Page 45 and 46: Bodum v DKSH (2011) 280 ALR 639 Gre
Page 47 and 48: Bodum v DKSH (2011) 280 ALR 639 •
Page 49 and 50: Reconcile product get-up decisions?

2012 IPSANZ Annual Conference Seminar ... - List G Barristers

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