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

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Bodum v DKSH (2011) 280 ALR 639 • Seems that onus is now effectively reversed • If products look the same, it is “incumbent” on respondent to distinguish its product (Phillips) • Greenwood J: “The real question to be determined in the proceeding is whether DKSH has done enough having regard to all the relevant differentiation factors to distinguish its rival product from the Bodum product.” • In effect, respondent must prove a positive case that it has “done enough” to not mislead • Suggests a presumption that similar products mislead • Is this what Gibbs CJ and Mason J intended in Parkdale? • NZCA’s review of Parkdale in Taylor suggests not
Reconcile product get-up decisions? App’s brand name well known? Resp’s brand name well known? Resp’s brand prominent? Intent to copy product? Impulse buy? Breach? Parkdale Unclear Unclear No Yes No No: four judges Yes: three judges Dr Martens Yes Yes Yes Yes No No: four judges Phillips Yes Yes Yes Yes No No: four judges Red Bull Yes No Yes Yes Yes Yes: four judges Maltesers Yes No Yes No Yes No: four judges Bodum Yes No Debated Yes No Yes: two judges No: two judges
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
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: Bodum v DKSH (2011) 280 ALR 639 •

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

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