Adidas AG v Pacific Brands Footwear Pty Ltd [2011] FCA 1205

Adidas AG v Pacific Brands Footwear Pty Ltd [2011] FCA 1205

The respondent's application was premature and failed because it was not sufficiently clear at this stage that the proposed survey could not produce relevant, admissible or sufficiently probative evidence, and the respondent's objection that survey evidence on deceptive similarity was necessarily inadmissible was wrong; the proper course was for the Practice Note CM 13 process to continue.

Jurisdiction
Australia
Judgment Date
26 October 2011
Procedural Posture
Trade Marks Proceeding Concerning Alleged Infringement of the 3 Stripe Trade Marks / Respondent's Interlocutory Application for Orders That the Applicants Not Be Permitted to Use or Rely on Proposed Survey Evidence
Outcome
The respondent's interlocutory application was dismissed with costs.
Legal Topics
['survey Evidence' 'practice Note CM 13' 'deceptive Similarity' 'admissibility of Evidence' 'case Management']
['practice and Procedure' 'trade Marks' 'evidence'] ['survey Evidence' 'practice Note CM 13' 'deceptive Similarity' 'admissibility of Evidence' 'case Management']

Case Brief

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Procedural Posture

Trade Marks Proceeding Concerning Alleged Infringement of the 3 Stripe Trade Marks / Respondent's Interlocutory Application for Orders That the Applicants Not Be Permitted to Use or Rely on Proposed Survey Evidence

Legal Issues

  1. 1 ['Whether the applicants should be prevented from using or relying upon any survey evidence.' 'Whether the applicants should presently be prevented from using or relying upon the proposed survey evidence.' 'Whether survey evidence directed to deceptive similarity is inadmissible because deceptive similarity is a question for the tribunal of fact.' 'Whether the Practice Note CM 13 process should continue before any ruling excluding the proposed survey evidence.']

Ratio Decidendi

The respondent's application was premature and failed because it was not sufficiently clear at this stage that the proposed survey could not produce relevant, admissible or sufficiently probative evidence, and the respondent's objection that survey evidence on deceptive similarity was necessarily inadmissible was wrong; the proper course was for the Practice Note CM 13 process to continue.

Court Disposition

The respondent's interlocutory application was dismissed with costs.

Orders

  • ["The respondent's interlocutory application be dismissed with costs." 'The parties file by 2 November 2011 proposed directions to vary the directions made on 19 July 2011 either as agreed or, failing agreement, their competing proposed directions.']