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

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Bodum v DKSH (2011) 280 ALR 639 • Split decision (unlike Red Bull or Maltesers): • At trial: • Middleton J: not passing off or misleading conduct • On appeal: • Greenwood J: passing off and misleading conduct • Tracey J: agreed with Greenwood J • Buchanan J: dissented, agreed with Middleton J
Playcorp v Bodum (2010) 84 IPR 542 Middleton J at trial, finding no passing off or misleading conduct: • BODUM name has a significant reputation • But no reputation in product features without BODUM • Even if there were a reputation in product features alone, respondents’ products, as packaged, are not sufficiently similar to give rise to misrepresentation • Even if respondents’ brands are not well known, they would distinguish as in Philips and Dr Martens • Like MALTESERS, Bodum is “a victim of its own success” – consumer would expect to see BODUM before making any association to Bodum • Unlike RED BULL, not an impulse purchase • No intention to mislead, but even if there was, products and packaging are sufficiently different
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 and 22: Comparison: passing off and trade m
Page 23 and 24: Parkdale v Puxu (1982) 149 CLR 191
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
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Page 49 and 50: Reconcile product get-up decisions?

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

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