Case: Kettle Chip Co Pty Ltd v Apand Pty Ltd [1993] FCA 546 ; (1993) 46 FCR 152
Outcome: cited
And, as Burchett J noted in Kettle Chip Co Pty Ltd v Apand Pty Ltd [1993] FCA 546 ; (1993) 46 FCR 152 at 161: Of course, a person who places the packets before him, side by side, can also see differences. But that is not how passing off by the imitation of another trader's mark or get-up is to be tested. In general, and more particularly in the case of an item likely to be purchased for a small price without long consideration, the comparison which must be made is between the impression of the applicant's goods retained in a customer's mind and the impression made by the sort of consideration he is likely to give to the respondent's product before purchasing it. 79 Ricegrowers argued that the circumstances of the purchase of the competing products by the ordinary reasonable consumer included the following: &#8226; each of the products was low in price and a routine purchase likely to appear on the ordinary reasonable consumer's shopping list. It was likely to be bought, along with many other items, whilst the weekly shopping was being done. For the ordinary reasonable consumer, looking to purchase this type of snack food, the shopping process is a "low involvement" one. Low involvement purchases are ones which are made frequently, or sometimes on impulse and typically do not involve a large price; &#8226; the ordinary reasonable shopper has a hierarchy of cues which she uses, even in low involvement purchases when shopping very fast, in order to identify the goods she is purchasing. Ms Anderson said the cues provide shortcuts for the different categories. One such cue is the use of colour packaging of food stuffs such green for sour cream and chives; &#8226; Ricegrowers argued that when Ms Anderson prepared the marketing brief with The Leading Edge, she said that "Corn Thins" were a routine purchase, the shopping process was generally low involvement and there were shortcuts or cues which aided purchase such as familiar brands, colours, packaging, flavours and claims (e.g. the product was 97% fat free and the claims made in the nutritional information panel on the package); &#8226; the packaging of the SunRice and Real Foods flavoured products had substantial similarities in the critical cues necessary to grab the attention of the ordinary reasonable consumer; &#8226; Ms Anderson said that a new product in a crowded category, that is one in which there were many products, had to jump out and attract the consumer to a point of difference. The way in which that was done was to use familiar brands, colouring, packaging, flavours and claims for products so that the product will "work hard", as packaged, to gain the attention of the ordinary reasonable shopper. Consumers rarely go into supermarkets looking for a new product. Generally they scan the shelves in the rice cake and corn cake category from a slight distance and are attracted quickly by the cues before making the decision to take the product; &#8226; Real Foods were using symbols or logos which were likely, despite differences of detail, to lead the ordinary reasonable consumer to form the impression of a common business or at least of an association, connection or affiliation. Ricegrowers relied on what Burchett J had said in Kettle Chip 46 FCR at 176, and argued that: (a) Real Foods used a packaging type (flow pack) that it had never previously deployed in that form. Its packaging was virtually indistinguishable from the SunRice packaging. The ordinary reasonable consumer would not notice differences in the plastic flow pack of the SunRice rice cakes compared to the foil flow pack of the Real Foods and SunRice corn cakes; (b) the colours and imagery used for the packaging as well as the three flavour types of the two competitors were virtually identical; (c) the logo of Real Foods' brand was diminutive on the packaging contrary to the recommendations made to Real Foods by its market research company, The Leading Edge; (d) there was minimal, if any advertising; (e) Real Foods used the "Corn Thins" name as a brand despite many consumers seeing it as simply descriptive of a category of goods and not identifying it as a brand. 80 Ricegrowers argued that Real Foods adopted the course set out above in order to take a fast and easy option which copied the market leader, SunRice, and sought to emulate its success. Ricegrowers argued that Real Foods had chosen the packaging designs for its new flavoured products which sailed "too close to the wind" to that of SunRice. In effect, it claimed that Real Foods had designed a product knowing it had features of SunRice's products and which were calculated or likely to cause consumers, who would spend little time examining the differences in the products, to purchase them.