Case: Interlego AG v Croner Trading Pty Limited (1992) 39 FCR 348
Outcome: cited
Dayals criticises the absence of expert evidence concerning the reputation of Natural Waters or Fiji Water and, in particular, the absence of survey evidence as to the reputation in, and public recognition of, the "constellation of features" relied upon by Natural Waters. There is no suggestion that such survey evidence was obtained and not adduced; the evidence is that Natural Waters has not engaged market research in this area. Natural Waters has adduced evidence of the sales, marketing and promotion of Fiji Water. Natural Waters submits, with reference to Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (2006) 228 ALR 719 at [11] [12] that expert evidence of reputation or consumer association would be unhelpful and inadmissible as it could amount to no more than an opinion on a matter that is not outside the experience of ordinary persons. As a general proposition, evidence as to the reputation of an applicant's packaging or get-up in the mind of the consumer may be adduced ( Interlego AG v Croner Trading Pty Limited (1992) 39 FCR 348 at 387 per Gummow J with whom Black CJ and Lockhart J agreed). The evidence ruled inadmissible in Cadbury seemed to concern the likelihood of deception rather than reputation (at [5]) and evidence of consumer recognition, in the form of a "chocolate sensory study" was admitted ( Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) (2006) 229 ALR 136 at [69]). 31 The determination of passing off and of contravention of the Act and the Fair Trading Act is assessed as a matter of impression based on recollection of the Fiji Water get-up and the Island Chill get-up. Whether a get-up so nearly resembles another as to be deceptive or likely to deceive is a question for the Court ( Interlego at 387). The packaging must be viewed as a whole ( Sterling Winthrop Pty Limited v R &amp; C Products Pty Ltd (1994) ATPR 41,308 at 42,126). It is not a question of comparing the bottles side by side and engaging in a minute and detailed analysis of the similarities and differences. The observations of Windeyer J in The Shell Co of Australia Ltd v Esso Standard Oil (Australia) Ltd [1961] HCA 75 ; (1963) 109 CLR 407 at 415 as to the assessment of deceptive similarity in a trade mark context are apposite. The goods in question are inexpensive consumer goods: bottled water, where the item is purchased for a relatively small price without long consideration and where the consumer is unlikely to engage in lengthy or detailed comparison of the respective get-ups ( Kettle Chip Company Pty Ltd v Apand Pty Ltd (1993) 46 FCR 152 at 161). A consumer choosing between bottles of water on display would be likely to base the choice of purchase of his or her favoured bottled water product largely on recognition of the packaging. 59 The reputation which must be proved in a case such as this is that the get-up, packaging, shape, or trade dress relied upon is associated by consumers with the applicant's product. It takes a strong case to establish a reputation of this nature ( Interlego at 386) as consumers will not necessarily associate a get-up with the applicant's product ( Collins Debden Pty Ltd v Cumberland Stationery Co Pty Ltd (No 2) [2005] FCA 1398 at [33] to [34] per Lindgren J). The requisite reputation will more readily be found where the get-up is unique or striking rather than descriptive, mundane, merely functional, or in common use.