MacPhee v Peters Foods Australia Pty Limited (in liquidation) [2003] FCA 1528

MacPhee v Peters Foods Australia Pty Limited (in liquidation) [2003] FCA 1528

The range boards distributed by Peters Foods depicting Drumstick Gold as 'Lemon Cheesecake' were misleading or deceptive and constituted false representation within s 52 and s 53 of the Trade Practices Act 1974 (Cth), but the advertisement qualified with 'lemon cheesecake flavour' was not. No passing off was made out, as there was no misrepresentation connecting respondent’s goods to applicant. The applicant failed to prove any loss resulting from the misleading conduct and thus could not recover damages. On the cross claim, the registered design was an obvious adaptation of pre-existing cone-shaped articles (ice creams), was not novel, and was properly expunged from the register.

Jurisdiction
Australia
Judgment Date
19 December 2003
Procedural Posture
Application and Cross Claim / Judgment After Trial
Outcome
Application allowed in part; cross claim allowed
Legal Topics
['misleading and Deceptive Conduct' 'false Representation' 'passing Off' 'rectification of Register' 'design Registration' 'standing to Apply for Rectification']
['trade Practices' 'intellectual Property' 'designs Law' 'passing Off'] ['misleading and Deceptive Conduct' 'false Representation' 'passing Off' 'rectification of Register' 'design Registration' 'standing to Apply for Rectification']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application and Cross Claim / Judgment After Trial

Legal Issues

  1. 1 ["Whether the advertising placard describing respondent's ice cream as 'Lemon Cheesecake' was misleading or deceptive conduct under s 52/53 of the Trade Practices Act 1974 (Cth)" 'Whether respondent passed off its ice cream product as goods of the applicant' "Whether applicant's registered design should be expunged from register under the Designs Act 1906 (Cth)"]

Ratio Decidendi

The range boards distributed by Peters Foods depicting Drumstick Gold as 'Lemon Cheesecake' were misleading or deceptive and constituted false representation within s 52 and s 53 of the Trade Practices Act 1974 (Cth), but the advertisement qualified with 'lemon cheesecake flavour' was not. No passing off was made out, as there was no misrepresentation connecting respondent’s goods to applicant. The applicant failed to prove any loss resulting from the misleading conduct and thus could not recover damages. On the cross claim, the registered design was an obvious adaptation of pre-existing cone-shaped articles (ice creams), was not novel, and was properly expunged from the register.

Court Disposition

Application allowed in part; cross claim allowed

Orders

  • ["Declaration that Peters Foods Australia Pty Limited (in liquidation) engaged in conduct in breach of s 52 and s 53 of the Trade Practices Act 1974 (Cth) by distributing range boards describing Drumstick Gold as 'Lemon Cheesecake' when it was not cheesecake." 'No order as to costs of the application.' 'Cross claim...