mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Singer Manufacturing Co v Loog (1880) 18 Ch D 395
Outcome: cited
the reasons I gave in dealing with the misleading or deceptive conduct claim, I am not satisfied that any operative misrepresentation was made to Crafers by Hamilton's misuse of the Chinese language marks. Further, no attempt has been made by AMC to make out a case of passing off by reference to those persons who, on my findings, constituted the classes of purchasers to which any representation made in the supply to Crafers was addressed, ie the passengers and crew of ships, not consumers in Hong Kong. I would note in this that it is well accepted that if a product packaged in such a way as will deceive the ultimate consumers to be addressed by the packaging, it is no defence that wholesalers or retailers with whom the deceiver deals, are not themselves deceived: see Singer Manufacturing Co v Loog (1880) 18 Ch D 395 at 412; Shanahan at [20.175]; Kerly at 15-201. As to the claim of passing off to Hong Kong consumers, consistent with what I said in the misleading or deceptive conduct claims, such misrepresentations as may have been made (I make no finding to that effect) were not the responsibility of Hamilton. The Hong Kong market was not the relevant market in which the product sold by Hamilton to Crafers was to be sold. Crafers assumed responsibility for such misrepresentation when it sold to a Hong Kong importer.
Case: Pacific Dunlop Ltd v Hogan [1989] FCA 185 ; (1989) 23 FCR 553
Outcome: cited
for present purposes, AMC's claim in any event is for passing off in Australia hence its reliance on the observations of Beaumont J in Pacific Dunlop Ltd v Hogan [1989] FCA 185 ; (1989) 23 FCR 553 at 583 that: The cause of action for passing off is complete as soon as the relevant misrepresentation is made, even though no actual deception and damage to the plaintiff can be shown to have resulted from it. See also British Telecommunications PLC v One in a Million Ltd (1998) 42 IPR 289 at 295 but cf 302: see also Kerly , at 15-201 15-203.
Case: British Telecommunications PLC v One in a Million Ltd (1998) 42 IP 289
Outcome: cited
for present purposes, AMC's claim in any event is for passing off in Australia hence its reliance on the observations of Beaumont J in Pacific Dunlop Ltd v Hogan [1989] FCA 185 ; (1989) 23 FCR 553 at 583 that: The cause of action for passing off is complete as soon as the relevant misrepresentation is made, even though no actual deception and damage to the plaintiff can be shown to have resulted from it. See also British Telecommunications PLC v One in a Million Ltd (1998) 42 IPR 289 at 295 but cf 302: see also Kerly , at 15-201 15-203.
Case: Hart v MacDonald [1910] HCA 13 ; (1910) 10 CLR 417
Outcome: cited
am, in short, in no position to consider the claim made by Hamilton whatever its underlying merit may be. All I can say is that, without knowledge of the Ordinance and its scheme, I cannot proceed to determine whether a term such as Hamilton suggests could or should be implied into the Distribution Agreement, assuming the "entire agreement" provisions of cl 45 of that Agreement did not preclude such an implication: see Hart v MacDonald [1910] HCA 13 ; (1910) 10 CLR 417 ; Hope v RCA Photophone of Australia Pty Ltd [1937] HCA 90 ; (1937) 59 CLR 348 at 363; Etna v Arif [1999] VSCA 99 ; [1999] 2 VR 353 ; and see generally Cheshire and Fifoot , [10.7] (9 th Aust ed). Absent knowledge of the legislation, its context and purposes, I equally am in no position to determine whether there was any relevant relationship between Hamilton and AMC in relation to the Product Registrations, let alone a fiduciary one. I would also add that absent some express contractual stipulation, it is not altogether obvious to me in any event why, on termination of the Distribution Agreement, AMC ought reasonably to be expected to cooperate with Hamilton in facilitating the distribution of its products in Hong Kong by transferring its Product Registrations to a person capable of holding them under Hong Kong law.
Case: Hope v RCA Photophone of Australia Pty Ltd [1937] HCA 90 ; (1937) 59 CLR 348
Outcome: cited
am, in short, in no position to consider the claim made by Hamilton whatever its underlying merit may be. All I can say is that, without knowledge of the Ordinance and its scheme, I cannot proceed to determine whether a term such as Hamilton suggests could or should be implied into the Distribution Agreement, assuming the "entire agreement" provisions of cl 45 of that Agreement did not preclude such an implication: see Hart v MacDonald [1910] HCA 13 ; (1910) 10 CLR 417 ; Hope v RCA Photophone of Australia Pty Ltd [1937] HCA 90 ; (1937) 59 CLR 348 at 363; Etna v Arif [1999] VSCA 99 ; [1999] 2 VR 353 ; and see generally Cheshire and Fifoot , [10.7] (9 th Aust ed). Absent knowledge of the legislation, its context and purposes, I equally am in no position to determine whether there was any relevant relationship between Hamilton and AMC in relation to the Product Registrations, let alone a fiduciary one. I would also add that absent some express contractual stipulation, it is not altogether obvious to me in any event why, on termination of the Distribution Agreement, AMC ought reasonably to be expected to cooperate with Hamilton in facilitating the distribution of its products in Hong Kong by transferring its Product Registrations to a person capable of holding them under Hong Kong law.
Case: Etna v Arif [1999] VSCA 99 ; [1999] 2 VR 353
Outcome: cited
am, in short, in no position to consider the claim made by Hamilton whatever its underlying merit may be. All I can say is that, without knowledge of the Ordinance and its scheme, I cannot proceed to determine whether a term such as Hamilton suggests could or should be implied into the Distribution Agreement, assuming the "entire agreement" provisions of cl 45 of that Agreement did not preclude such an implication: see Hart v MacDonald [1910] HCA 13 ; (1910) 10 CLR 417 ; Hope v RCA Photophone of Australia Pty Ltd [1937] HCA 90 ; (1937) 59 CLR 348 at 363; Etna v Arif [1999] VSCA 99 ; [1999] 2 VR 353 ; and see generally Cheshire and Fifoot , [10.7] (9 th Aust ed). Absent knowledge of the legislation, its context and purposes, I equally am in no position to determine whether there was any relevant relationship between Hamilton and AMC in relation to the Product Registrations, let alone a fiduciary one. I would also add that absent some express contractual stipulation, it is not altogether obvious to me in any event why, on termination of the Distribution Agreement, AMC ought reasonably to be expected to cooperate with Hamilton in facilitating the distribution of its products in Hong Kong by transferring its Product Registrations to a person capable of holding them under Hong Kong law.
Case: Moorgate Tobacco Co Ltd v Phillip Morris Ltd [No 2] [1984] HCA 73 ; (1984) 156 CLR 414
Outcome: applied
accepted basis in this country of the equitable jurisdiction to relieve against an actual or threatened abuse of confidential information lies ... in the notion of an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained. Moorgate Tobacco Co Ltd v Phillip Morris Ltd [No 2] [1984] HCA 73 ; (1984) 156 CLR 414 at 438.
Case: Smith Kline &amp; French Laboratories (Aust) Ltd v Department of Community Services and Health [1989] FCA 384 ; (1990) 22 FCR 73
Outcome: applied
agreed elements of the action for breach of confidence are, for present purposes, that: (i) the information in question must be confidential in character: it must have "the necessary quality of confidence about it": Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203 at 215; (ii) it must have been imparted in circumstances importing an obligation of confidence: Coco v A N Clark (Engineers) Ltd [1969] RPC 41 at 47; Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37 at 40; and (iii) there must have been an actual or threatened unauthorised use or disclosure of that information: Smith Kline &amp; French Laboratories (Aust) Ltd v Department of Community Services and Health [1989] FCA 384 ; (1990) 22 FCR 73 at 87, 111-112; Prince Jefri Bolkiah v KPMG (a firm) [1998] UKHL 52 ; [1999] 2 AC 222. See generally, Dean, The Law of Trade Secrets and Personal Secrets (2 nd ed, 2002); Toulson and Phipps, Confidentiality (2 nd ed, 2006). The alternative test the "purpose" test asks: Has confidential information been imparted for what was known, or ought reasonably to have been known, to be only for a particular purpose? If it has, its use must be limited to that purpose. This approach has commonly been used in cases in which confidential industrial information has been disclosed (usually under contract) to a manufacturer either by way of licence for a period or so as to manufacture a product for the confider: see Saltman Engineering , at 213; Nichrotherm Electrical Co Ltd v Percy [1956] RPC 272 at 280; Ackroyds (London) Ltd at 104; Torrington Manufacturing Co Ltd v Smith &amp; Sons (England) Ltd [1966] RPC 285. Its use extends beyond that context: see Interfirm Comparison (Australia) at 117; and Gurry "Breach of Confidence" in Finn (ed) Essays in Equity , 118 (1985); Smith Kline &amp; French , at 96.
Case: Prince Jefri Bolkiah v KPMG (a firm) [1998] UKHL 52 ; [1999] 2 AC 222
Outcome: cited
agreed elements of the action for breach of confidence are, for present purposes, that: (i) the information in question must be confidential in character: it must have "the necessary quality of confidence about it": Saltman Engineering Co Ltd v Campbell Engineering Co Ltd (1948) 65 RPC 203 at 215; (ii) it must have been imparted in circumstances importing an obligation of confidence: Coco v A N Clark (Engineers) Ltd [1969] RPC 41 at 47; Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37 at 40; and (iii) there must have been an actual or threatened unauthorised use or disclosure of that information: Smith Kline &amp; French Laboratories (Aust) Ltd v Department of Community Services and Health [1989] FCA 384 ; (1990) 22 FCR 73 at 87, 111-112; Prince Jefri Bolkiah v KPMG (a firm) [1998] UKHL 52 ; [1999] 2 AC 222. See generally, Dean, The Law of Trade Secrets and Personal Secrets (2 nd ed, 2002); Toulson and Phipps, Confidentiality (2 nd ed, 2006).
Case: Franchi v Franchi [1967] RPC 149
Outcome: cited
essential attribute of confidential information is what has been described as "relative secrecy": Franchi v Franchi [1967] RPC 149 , at 153; Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales [1975] 2 NSWLR 104 at 119. Whether this attribute exists in a given case will be often a question of degree and a variety of criteria have been invoked in varying contexts to sharpen the inquiry to be made: (i) is the information in question widely known, or publicly available in the relevant industry, trade, etc: Coco at 51; cf Ansell Rubber Co at 50; Titan Group Pty Ltd v Steriline Manufacturing Pty Ltd (1990) 19 IPR 353 at 381; (ii) has the confider made the information public by using it in its manufactured products and placing it on the market, or would the ascertainment of the information from the manufactured product by reverse engineering or otherwise require the expenditure of time, effort, money or experimentation: see eg Ackroyds (London) Ltd v Islington Plastics Ltd [1962] RPC 97 ; Aquaculture Corporation v New Zealand Green Mussel Co Ltd (1985) 5 IPR 357 at 379; (iii) did the confider produce or obtain the information only after the expenditure of time and/or money by way of research or in the application of skill and ingenuity; Saltman Engineering Co Ltd ; cf United Sterling Corporation v Felton [1974] RPC 162 ; Interfirm Comparison (Australia) Ltd , at 117; could another person acquire or duplicate the information only by going through a like process: Cranleigh Precision Engineering Ltd v Bryant [1966] RPC 81 at 89-90; Ansell Rubber Co at 49; (iv) what steps has the confider taken to preserve the secrecy of the information and to prevent it becoming public knowledge: Amber Size &amp; Chemical Co Ltd v Menzel (1913) 30 RPC 433 at 438; Dean, at [3.165]-[3.175]; (v) is the information intrinsically valuable or is it valuable to the confider or to a competitor or other interested party: Surveys &amp; Mining Ltd v Morrison [1969] Qd R 470 ; Measures Brothers Ltd v Measures [1910] 1 Ch 336 ; and (vi) would a reasonable person in all the circumstances recognise the information to be the "property" of the confider: Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167 at 191; Printers &amp; Finishers Ltd v Holloway (No 2) [1965] RPC 239 at 255.
Case: Titan Group Pty Ltd v Steriline Manufacturing Pty Ltd (1990) 19 IPR 353
Outcome: cited
essential attribute of confidential information is what has been described as "relative secrecy": Franchi v Franchi [1967] RPC 149 , at 153; Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales [1975] 2 NSWLR 104 at 119. Whether this attribute exists in a given case will be often a question of degree and a variety of criteria have been invoked in varying contexts to sharpen the inquiry to be made: (i) is the information in question widely known, or publicly available in the relevant industry, trade, etc: Coco at 51; cf Ansell Rubber Co at 50; Titan Group Pty Ltd v Steriline Manufacturing Pty Ltd (1990) 19 IPR 353 at 381; (ii) has the confider made the information public by using it in its manufactured products and placing it on the market, or would the ascertainment of the information from the manufactured product by reverse engineering or otherwise require the expenditure of time, effort, money or experimentation: see eg Ackroyds (London) Ltd v Islington Plastics Ltd [1962] RPC 97 ; Aquaculture Corporation v New Zealand Green Mussel Co Ltd (1985) 5 IPR 357 at 379; (iii) did the confider produce or obtain the information only after the expenditure of time and/or money by way of research or in the application of skill and ingenuity; Saltman Engineering Co Ltd ; cf United Sterling Corporation v Felton [1974] RPC 162 ; Interfirm Comparison (Australia) Ltd , at 117; could another person acquire or duplicate the information only by going through a like process: Cranleigh Precision Engineering Ltd v Bryant [1966] RPC 81 at 89-90; Ansell Rubber Co at 49; (iv) what steps has the confider taken to preserve the secrecy of the information and to prevent it becoming public knowledge: Amber Size &amp; Chemical Co Ltd v Menzel (1913) 30 RPC 433 at 438; Dean, at [3.165]-[3.175]; (v) is the information intrinsically valuable or is it valuable to the confider or to a competitor or other interested party: Surveys &amp; Mining Ltd v Morrison [1969] Qd R 470 ; Measures Brothers Ltd v Measures [1910] 1 Ch 336 ; and (vi) would a reasonable person in all the circumstances recognise the information to be the "property" of the confider: Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167 at 191; Printers &amp; Finishers Ltd v Holloway (No 2) [1965] RPC 239 at 255.
Case: Aquaculture Corporation v New Zealand Green Mussel Co Ltd (1985) 5 IPR 357
Outcome: cited
essential attribute of confidential information is what has been described as "relative secrecy": Franchi v Franchi [1967] RPC 149 , at 153; Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales [1975] 2 NSWLR 104 at 119. Whether this attribute exists in a given case will be often a question of degree and a variety of criteria have been invoked in varying contexts to sharpen the inquiry to be made: (i) is the information in question widely known, or publicly available in the relevant industry, trade, etc: Coco at 51; cf Ansell Rubber Co at 50; Titan Group Pty Ltd v Steriline Manufacturing Pty Ltd (1990) 19 IPR 353 at 381; (ii) has the confider made the information public by using it in its manufactured products and placing it on the market, or would the ascertainment of the information from the manufactured product by reverse engineering or otherwise require the expenditure of time, effort, money or experimentation: see eg Ackroyds (London) Ltd v Islington Plastics Ltd [1962] RPC 97 ; Aquaculture Corporation v New Zealand Green Mussel Co Ltd (1985) 5 IPR 357 at 379; (iii) did the confider produce or obtain the information only after the expenditure of time and/or money by way of research or in the application of skill and ingenuity; Saltman Engineering Co Ltd ; cf United Sterling Corporation v Felton [1974] RPC 162 ; Interfirm Comparison (Australia) Ltd , at 117; could another person acquire or duplicate the information only by going through a like process: Cranleigh Precision Engineering Ltd v Bryant [1966] RPC 81 at 89-90; Ansell Rubber Co at 49; (iv) what steps has the confider taken to preserve the secrecy of the information and to prevent it becoming public knowledge: Amber Size &amp; Chemical Co Ltd v Menzel (1913) 30 RPC 433 at 438; Dean, at [3.165]-[3.175]; (v) is the information intrinsically valuable or is it valuable to the confider or to a competitor or other interested party: Surveys &amp; Mining Ltd v Morrison [1969] Qd R 470 ; Measures Brothers Ltd v Measures [1910] 1 Ch 336 ; and (vi) would a reasonable person in all the circumstances recognise the information to be the "property" of the confider: Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167 at 191; Printers &amp; Finishers Ltd v Holloway (No 2) [1965] RPC 239 at 255.
Case: United Sterling Corporation v Felton [1974] RPC 162
Outcome: cited
essential attribute of confidential information is what has been described as "relative secrecy": Franchi v Franchi [1967] RPC 149 , at 153; Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales [1975] 2 NSWLR 104 at 119. Whether this attribute exists in a given case will be often a question of degree and a variety of criteria have been invoked in varying contexts to sharpen the inquiry to be made: (i) is the information in question widely known, or publicly available in the relevant industry, trade, etc: Coco at 51; cf Ansell Rubber Co at 50; Titan Group Pty Ltd v Steriline Manufacturing Pty Ltd (1990) 19 IPR 353 at 381; (ii) has the confider made the information public by using it in its manufactured products and placing it on the market, or would the ascertainment of the information from the manufactured product by reverse engineering or otherwise require the expenditure of time, effort, money or experimentation: see eg Ackroyds (London) Ltd v Islington Plastics Ltd [1962] RPC 97 ; Aquaculture Corporation v New Zealand Green Mussel Co Ltd (1985) 5 IPR 357 at 379; (iii) did the confider produce or obtain the information only after the expenditure of time and/or money by way of research or in the application of skill and ingenuity; Saltman Engineering Co Ltd ; cf United Sterling Corporation v Felton [1974] RPC 162 ; Interfirm Comparison (Australia) Ltd , at 117; could another person acquire or duplicate the information only by going through a like process: Cranleigh Precision Engineering Ltd v Bryant [1966] RPC 81 at 89-90; Ansell Rubber Co at 49; (iv) what steps has the confider taken to preserve the secrecy of the information and to prevent it becoming public knowledge: Amber Size &amp; Chemical Co Ltd v Menzel (1913) 30 RPC 433 at 438; Dean, at [3.165]-[3.175]; (v) is the information intrinsically valuable or is it valuable to the confider or to a competitor or other interested party: Surveys &amp; Mining Ltd v Morrison [1969] Qd R 470 ; Measures Brothers Ltd v Measures [1910] 1 Ch 336 ; and (vi) would a reasonable person in all the circumstances recognise the information to be the "property" of the confider: Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167 at 191; Printers &amp; Finishers Ltd v Holloway (No 2) [1965] RPC 239 at 255.
Case: Cranleigh Precision Engineering Ltd v Bryant [1966] RPC 81
Outcome: cited
essential attribute of confidential information is what has been described as "relative secrecy": Franchi v Franchi [1967] RPC 149 , at 153; Interfirm Comparison (Australia) Pty Ltd v Law Society of New South Wales [1975] 2 NSWLR 104 at 119. Whether this attribute exists in a given case will be often a question of degree and a variety of criteria have been invoked in varying contexts to sharpen the inquiry to be made: (i) is the information in question widely known, or publicly available in the relevant industry, trade, etc: Coco at 51; cf Ansell Rubber Co at 50; Titan Group Pty Ltd v Steriline Manufacturing Pty Ltd (1990) 19 IPR 353 at 381; (ii) has the confider made the information public by using it in its manufactured products and placing it on the market, or would the ascertainment of the information from the manufactured product by reverse engineering or otherwise require the expenditure of time, effort, money or experimentation: see eg Ackroyds (London) Ltd v Islington Plastics Ltd [1962] RPC 97 ; Aquaculture Corporation v New Zealand Green Mussel Co Ltd (1985) 5 IPR 357 at 379; (iii) did the confider produce or obtain the information only after the expenditure of time and/or money by way of research or in the application of skill and ingenuity; Saltman Engineering Co Ltd ; cf United Sterling Corporation v Felton [1974] RPC 162 ; Interfirm Comparison (Australia) Ltd , at 117; could another person acquire or duplicate the information only by going through a like process: Cranleigh Precision Engineering Ltd v Bryant [1966] RPC 81 at 89-90; Ansell Rubber Co at 49; (iv) what steps has the confider taken to preserve the secrecy of the information and to prevent it becoming public knowledge: Amber Size &amp; Chemical Co Ltd v Menzel (1913) 30 RPC 433 at 438; Dean, at [3.165]-[3.175]; (v) is the information intrinsically valuable or is it valuable to the confider or to a competitor or other interested party: Surveys &amp; Mining Ltd v Morrison [1969] Qd R 470 ; Measures Brothers Ltd v Measures [1910] 1 Ch 336 ; and (vi) would a reasonable person in all the circumstances recognise the information to be the "property" of the confider: Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167 at 191; Printers &amp; Finishers Ltd v Holloway (No 2) [1965] RPC 239 at 255.