Case: Coca-Cola Co v All-Fect Distributors Ltd (1998) 43 IPR 47
Outcome: applied
In Coca-Cola Co v All-Fect Distributors Ltd (All-Fect) (1998) 43 IPR 47 at [41], albeit an infringement case, the Full Court said: "...the likelihood of deception or confusion involves an assessment of what would be the probable visual impression on customers or potential customers which would be produced as a result of the "notional normal and fair use" of the marks. See Gardenia Overseas Pty Ltd v The Garden Co Ltd (1994) 29 IPR 485 at 493." 60 Second, involved and uninvolved purchasers of bourbon and scotch whisky products review product labels. This is the fair and normal way in which consumers behave. In this case, confusion is mitigated by the circumstances in which such products are bought and sold. Bourbon products are typically labelled as bourbon, bourbon whiskey or Tennessee whiskey. Importantly, a consumer of these products must be 18 years of age. Bourbon products are much more expensive than impulse products such as soft drinks and confectionary: cf. All-Fect at [41] and Shanahan's Australian Law of Trade Marks &amp; Passing Off 3 rd ed (Shanahan), 176 and 211-212. Purchasers of alcohol generally tend to be discerning in their purchasing habits: cf Henschke &amp; Co v Rosemount Estates Pty Ltd ( Henschke ) (2001) 52 IPR 42 and Shanahan at 211-212. Where goods are denoted as being from a particular country, this constitutes another factor that reduces the possibility of confusion: Green's Application (1946) 64 RPC 14. 62 Third, there is no evidence that the GLENN OAKS mark would be used or would be likely to be used on a bottle of bourbon labelled solely as 'whisky' or 'whiskey'. While that does not limit the prospective use of a label of this nature, I infer from the absence of such evidence that such use would not be in the fair and normal course: Woollen Mills at 658, Woolworths Metro at [49] and All-Fect at [41]. In my view, the hypothetical scenario that the applicant proffers is one that will not, in all likelihood, eventuate. It cannot, therefore, lead to consumer confusion for the purposes of the Act. However, to cover this hypothetical case, the Court's order will state that bourbon in the statement of goods does not include bourbon which is labelled only as 'whiskey' or 'whisky'. 71 The relevant surrounding circumstances provide additional reasons why there would be marginal (if any) confusion. Carelessness or stupidity are considerations to be disregarded in any comparative analysis. This consideration has greater weight in a market where the purchase of products is not one of impulse, but requires some degree of consideration. Unlike All-Fect , this case does not deal with confectionary that targets consumers of less discerning habits, such as children. A purchaser must be at least 18 years of age and would, in all likelihood, consider the second feature of the marks. There is no deceptive similarity between the marks. 72 Similarly here, the point of difference is the second element of both marks: OAKS and LIVET. What appears at [71] to [72] is equally applicable in this comparison. OAKS and LIVIT do not hold the same meaning, the marks are vastly different in a visual and aural sense. 73 There is no deceptive similarity between the GLENN OAKS and GLENMORANGIE marks. Again, the second feature in the marks is distinct both visually and aurally. It is this feature that the consumer would be drawn to in terms of identifying a difference between the brands. Even allowing for imperfect recollection, there is no deceptive similarity between the marks.