Case: Taco Co of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136 ; (1982) 42 ALR 177
Outcome: referred to
or not a representation is made, and is misleading or deceptive or likely to mislead or deceive, is a matter to be determined objectively by the Court. Conduct is misleading or deceptive only if it induces or is capable of inducing error; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 ( Parkdale ). The objective judgment is made in relation to the persons or class of persons who may be mislead by the relevant conduct. In Parkdale Gibbs CJ said at 199: Section 52 does not expressly state what persons or class of persons should be considered as the possible victims for the purpose of deciding whether conduct is misleading or deceptive or likely to mislead or deceive. It seems clear enough that consideration must be given to the class of consumers likely to be affected by the conduct. Although it is true, as has often been said, that ordinarily a class of consumers may include the inexperienced as well as the experienced, and the gullible as well as the astute, the section must in my opinion by [sic] regarded as contemplating the effect of the conduct on reasonable members of the class. The heavy burdens which the section creates cannot have been intended to be imposed for the benefit of persons who fail to take reasonable care of their own interests. What is reasonable will or [sic] course depend on all the circumstances. It is not necessary to prove that the conduct in question actually deceived or mislead anyone: Parkdale at 198 ; Taco Co of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136 ; (1982) 42 ALR 177 ( Taco ). Conduct is likely to mislead or deceive if there is a real and not a remote possibility of it doing so. The person in receipt of the representation must labour under some error: Taco at 200 . In reaching such a conclusion, it is appropriate to ignore assumptions that a member of the public may make which are extreme or fanciful. It is necessary to consider the likely reaction to the representations by ordinary or reasonable members of the class of persons to whom the representation is directed: Campomar Sociedad, Limitada v Nike International Ltd [2000] HCA 12 ; (2000) 202 CLR 45 ( Campomar ). In Parkdale it was made plain that, in assessing objectively the effect of a representation, there may be more than one reasonable response in any given circumstance. It is necessary to have regard to the personal capacity and experience of different people, acting reasonably. In Campomar at 87, the High Court said: The initial question which must be determined is whether the misconceptions, or deceptions, alleged to arise or to be likely to arise are properly to be attributed to the ordinary or reasonable members of the classes of prospective purchasers. It is plain enough, also from Campomar at [106], that it is not sufficient for the conduct to cause confusion for it to be misleading or deceptive. That is not a sufficient level of error on which to base a finding that s 52 has been breached. The question is whether a class of the potential target audience, approaching the communication reasonably, would be likely to be misled or deceived: see Taco at 181 ; Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 88. There is some debate about whether the relevant class must be "significant" in number. I do not need to explore that because, as appears below, I find that the relevant class was significant in number.