Nutrientwater Pty Ltd v Baco Pty Ltd [2010] FCA 2

Nutrientwater Pty Ltd v Baco Pty Ltd [2010] FCA 2

The applicants failed to establish a relevant reputation in the features allegedly appropriated by the respondent, and the features in question were in common use in the enhanced water market. The respondent's products, through branding and packaging, were sufficiently distinguished to negate any likelihood of passing off or misleading and deceptive conduct under sections 52 and 53 of the Trade Practices Act. There was no proof of intent to mislead, nor evidence of deception among ordinary reasonable consumers.

Parties
First Applicant: Nutrientwater Pty Ltd; Second Applicant: LMBB Pty Ltd; Respondent: Baco Pty Ltd
Jurisdiction
Australia
Judgment Date
06 January 2010
Procedural Posture
Fast Track List Application / Final Judgment – Liability Only
Outcome
Application dismissed
Legal Topics
Passing Off, Misleading and Deceptive Conduct, Product Get Up, Reputation, Trade Practices Act S 52 and S 53
Torts Consumer Protection Intellectual Property Passing Off Misleading and Deceptive Conduct Product Get Up Reputation Trade Practices Act S 52 and S 53

Case Brief

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Parties

Nutrientwater Pty Ltd

First Applicant

LMBB Pty Ltd

Second Applicant

Baco Pty Ltd

Respondent

Procedural Posture

Fast Track List Application / Final Judgment – Liability Only

Legal Issues

  1. 1 Whether the respondent engaged in passing off by adopting similar product get-up
  2. 2 Whether the respondent engaged in misleading and deceptive conduct under s 52 of the Trade Practices Act
  3. 3 Whether representations contravened s 53(c) and (d) of the Trade Practices Act

Ratio Decidendi

The applicants failed to establish a relevant reputation in the features allegedly appropriated by the respondent, and the features in question were in common use in the enhanced water market. The respondent's products, through branding and packaging, were sufficiently distinguished to negate any likelihood of passing off or misleading and deceptive conduct under sections 52 and 53 of the Trade Practices Act. There was no proof of intent to mislead, nor evidence of deception among ordinary reasonable consumers.

Court Disposition

Application dismissed

Orders

  • The application dated 25 June 2009 be dismissed.
  • Parties to file and serve any submissions on costs on or before 20 January 2010.