Case: Interlego AG v Croner Trader Pty Ltd [1992] FCA 624 ; (1992) 39 FCR 348
Outcome: applied
In Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247 ; (2004) 139 FCR 215 at [21] , a Full Court of this Court cited the above passage with approval and continued: 22 Consideration of these difficulties shows the practical wisdom of the firm rule that the likelihood of conduct being misleading or deceptive is a question for the tribunal of fact and not for any witness to decide: General Electric Co (USA) v General Electric Co Ltd [1972] 1 WLR 729 at 738 per Lord Diplock, applied in a s 52 context by Gummow J, with whom Black CJ and Lockhart J agreed, in Interlego AG v Croner Trading Pty Ltd [1992] FCA 624 ; (1992) 39 FCR 348 at 387. 23 Lord Diplock points out in General Electric that a different rule applies in the case of sales not to the general public but in specialised markets concerning persons engaged in a particular trade. In the present case the relevant market is that in which the consumers are business users of domain names. Such users constitute large sections of the public and are not participants in a specialised market in the sense discussed by Lord Diplock. 50 In Interlego AG v Croner Trader Pty Ltd [1992] FCA 624 ; (1992) 39 FCR 348 Gummow J also said at 387: The issue of whether consumers have been or are likely to be deceived was described by Lord Diplock as a "jury question": General Electric Co (of USA) v General Electric Co Ltd [1972] 1 WLR 729; [1972] 2 All ER 507. His Lordship said (at 738; 515): [W]here goods are sold to the general public for consumption or domestic use, the question whether such buyers would be likely to be deceived or confused by the use of the trademark is a 'jury question'. By that I mean: that if the issue had now, as formerly, to be tried by a jury, who as members of the general public would themselves be potential buyers of the goods, they would be required not only to consider any evidence of other members of the public which had been adduced but also to use their own common sense and to consider whether they would themselves be likely to be deceived or confused. The question does not cease to be a 'jury question' when the issue is tried by a judge alone or on appeal by a plurality of judges. The judge's approach to the question should be the same as that of a jury. He, too, would be a potential buyer of the goods. He should, of course, be alert to the danger of allowing his own idiosyncratic knowledge or temperament to influence his decision, but the whole of his training in the practice of the law should have accustomed him to this, and this should provide the safety which in the case of a jury is provided by their number. That in issues of this kind judges are entitled to give effect to their own opinions as to the likelihood of deception or confusion and, in doing so, are not confined to the evidence of witnesses called at the trial is well established by the decisions of this House itself. 87 In its written submissions Cadbury cited numerous decisions which were said to involve facts or issues similar to the present case and statements of judges about the facts in those cases. For its part, Darrell Lea sought to draw different messages from those, and other, cases and statements. Without wishing to disparage the industry of counsel, I did not find this exercise particularly helpful. I repeat the statement of Lord Oliver in Reckitt &amp; Colman Ltd v Borden Inc (1990) 17 IPR 1 at 7, quoted in the earlier judgment at [120]. Mutatis mutandis , similar considerations apply to the trade practices claims. As was pointed out in Domain Names and Interlego (see [49]-[50] above), these are jury questions. A jury would not be asked to consider what was said by judges in other cases because a jury has to apply legal principle to the facts before it, and no other facts.