Case: Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247 ; (2004) 139 FCR 215 at [21]
Outcome: cited
Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 (31 March 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here: &nbsp; AustLII &gt;&gt; Databases &gt;&gt; Federal Court of Australia &gt;&gt; 2006 &gt;&gt; [2006] FCA 363 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 (31 March 2006) Last Updated: 7 April 2006 FEDERAL COURT OF AUSTRALIA Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2006] FCA 363 EVIDENCE opinion evidence as to likely consumer behaviour excluded not outside the knowledge and experience of a trier of fact evidence of opinion as to ordinary human nature not admissible alternatively evidence would be excluded on discretionary grounds Evidence Act 1995 (Cth) ss 79 , 135 Makita Australia Pty Ltd v Sprowles Pty Ltd [2001] NSWCA 305 ; (2001) 52 NSWLR 705 at [85] not followed Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354 at [16] followed Neowarra v Western Australia (No 1 ) (2006) FCR 208 at [16], [21]-[27] followed Jango v Northern Territory (No 4) (2004) 214 ALR 608 at [19] followed Ramsay v Watson [1961] HCA 65 ; (1961) 108 CLR 642 at 649 cited R v Turner [1975] QB 834 at 841 followed Murphy v The Queen [1989] HCA 28 ; (1989) 167 CLR 94 at 111 followed Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 382 followed Velevski v The Queen [2002] HCA 4 ; (2002) 187 ALR 233 cited Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504 at 527 cited Symonds Cider &amp; English Wine Company Ltd v Showerings (Ireland) Ltd [1997] 1 IEHC 1 at [20] cited Transport Publishing Co Pty Ltd v The Literature Board of Review [1956] HCA 73 ; (1956) 99 CLR 111 at 119 followed Cat Media Pty Ltd v Opti-Healthcare Pty Ltd [2003] FCA 133 at [55] cited Domain Names Australia Pty Ltd v .au Domain Administration Ltd [2004] FCAFC 247 ; (2004) 139 FCR 215 at [21] cited Ligertwood, Australian Evidence , 4 th Edition, 2004 at 494 Heydon, Cross on Evidence , 7 th Australian Edition, 2004 at 930 CADBURY SCHWEPPES PTY LTD v DARRELL LEA CHOCOLATE SHOPS PTY LTD NO. VID 555 OF 2005 HEEREY J 31 MARCH 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 555 OF 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE OF RULING: 31 MARCH 2006 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: The affidavits of Brian John Gibbs are not admitted into evidence. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 555 OF 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE: 31 MARCH 2006 PLACE: MELBOURNE RULING 1 The applicant Cadbury Schweppes Pty Ltd (Cadbury) has brought this proceeding against the respondent Darrell Lea Chocolate Shops Pty Ltd (Darrell Lea) alleging contravention of ss 52 , 53 (c) and 53 (d) of the Trade Practices Act 1974 (Cth) and passing off constituted by Darrell Lea's use in its chocolate confectionary business of "the colour Cadbury purple or any colour bearing a striking and obvious likeness to the colour Cadbury purple". 20 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 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 Trader Pty Ltd (1992) 39 FCR 348 at 387. 23 Lord Diplock points out (ibid) 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." 21 In JD Heydon's Cross on Evidence (7 th Australian ed, 2004) the learned author says at 930: "If the court comes to the conclusion that the subject of investigation does not require a sufficient degree of specialised knowledge to call for the testimony of an expert, evidence of opinion will generally be excluded, especially where the witness is produced merely to present in a cogent and vivid form the case of the party calling that witness. The danger of this evidence is that it dresses up matters which are within the ordinary experience of the tribunal of fact in a beguiling scientific garb which may conceal the blemishes within."