Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157

Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157

The LiveWire can’s get-up was found to be deceptively similar to that of Red Bull, satisfying the elements of passing off and contravening s 52 of the Trade Practices Act 1974 (Cth); there was deliberate adoption of distinctive features of Red Bull’s get-up, and the similarities would likely deceive or confuse consumers. The managing director, Mr Klimis, was knowingly concerned in the contravention but not liable as a joint tortfeasor for passing off.

Jurisdiction
Australia
Judgment Date
04 June 2002
Procedural Posture
Appeal / Decision on Appeal
Outcome
Appeal dismissed; cross-appeal dismissed.
Legal Topics
['passing Off' 'misleading and Deceptive Conduct' 'expert Evidence' 'joint Tortfeasor Liability']
['intellectual Property' 'tort Law' 'australian Consumer Law'] ['passing Off' 'misleading and Deceptive Conduct' 'expert Evidence' 'joint Tortfeasor Liability']

Case Brief

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Procedural Posture

Appeal / Decision on Appeal

Legal Issues

  1. 1 ['Whether the get-up of LiveWire energy drink constituted passing off of the Red Bull product' 'Whether Sydneywide Distributors Pty Ltd breached section 52 of the Trade Practices Act 1974 (Cth)' "Whether Emanuel Klimis was knowingly concerned in Sydneywide's contravention" 'Admissibility and weight of expert marketing evidence' 'Distinction between bottle and can in likelihood of deception']

Ratio Decidendi

The LiveWire can’s get-up was found to be deceptively similar to that of Red Bull, satisfying the elements of passing off and contravening s 52 of the Trade Practices Act 1974 (Cth); there was deliberate adoption of distinctive features of Red Bull’s get-up, and the similarities would likely deceive or confuse consumers. The managing director, Mr Klimis, was knowingly concerned in the contravention but not liable as a joint tortfeasor for passing off.

Court Disposition

Appeal dismissed; cross-appeal dismissed.

Orders

  • ['The appeal be dismissed.' 'The cross-appeal be dismissed.' 'The appellants pay the respondents’ costs of the appeal.' 'There be no order as to the costs of the cross-appeal.']