Coca-Cola Company v PepsiCo Inc (No 2) [2014] FCA 1287

Coca-Cola Company v PepsiCo Inc (No 2) [2014] FCA 1287

The applicant failed to establish that the respondents' Carolina Bottle shape was used as a trade mark or that it was deceptively similar to any of TCCC's registered trade marks. The overall shape and features of the Carolina Bottle, including the horizontal wave design and different proportions, were found to be distinctive and sufficiently different from the Contour Bottle. No intention to deceive was found. There was insufficient evidence that consumers associate the outline or silhouette of the Contour Bottle alone with TCCC or that consumers would be misled or deceived by the Carolina Bottle. The claims for passing off and contraventions of the Trade Practices Act also failed as...

Parties
Applicant: THE COCA‑COLA COMPANY; First Respondent: PEPSICO INC; Second Respondent: PEPSICO AUSTRALIA HOLDINGS PTY LIMITED ACN 079 719 743; Third Respondent: SCHWEPPES AUSTRALIA PTY LTD ACN 004 243 994
Jurisdiction
Australia
Judgment Date
28 November 2014
Procedural Posture
Civil / Judgment After Trial on Liability
Outcome
Application dismissed
Legal Topics
Misleading or Deceptive Conduct, Passing Off, Trade Mark Infringement, Shape Marks, Deceptive Similarity
Consumer Law Tort Law Intellectual Property Law Misleading or Deceptive Conduct Passing Off Trade Mark Infringement Shape Marks Deceptive Similarity

Case Brief

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Parties

THE COCA‑COLA COMPANY

Applicant

PEPSICO INC

First Respondent

PEPSICO AUSTRALIA HOLDINGS PTY LIMITED ACN 079 719 743

Second Respondent

SCHWEPPES AUSTRALIA PTY LTD ACN 004 243 994

Third Respondent

Procedural Posture

Civil / Judgment After Trial on Liability

Legal Issues

  1. 1 Whether the sale and marketing of respondents' glass cola bottle was misleading or deceptive, or likely to mislead or deceive under the Trade Practices Act 1974 (Cth) ss 52, 53(c) and the Competition and Consumer Act 2010 (Cth) Sch 2, s 232
  2. 2 Whether respondents' conduct amounted to the tort of passing off by marketing the Carolina Bottle shape
  3. 3 Whether respondents infringed the applicant's registered glass bottle shape trade marks under the Trade Marks Act 1995 (Cth) s 120 by using a similar bottle shape as a trade mark

Ratio Decidendi

The applicant failed to establish that the respondents' Carolina Bottle shape was used as a trade mark or that it was deceptively similar to any of TCCC's registered trade marks. The overall shape and features of the Carolina Bottle, including the horizontal wave design and different proportions, were found to be distinctive and sufficiently different from the Contour Bottle. No intention to deceive was found. There was insufficient evidence that consumers associate the outline or silhouette of the Contour Bottle alone with TCCC or that consumers would be misled or deceived by the Carolina Bottle. The claims for passing off and contraventions of the Trade Practices Act also failed as...

Court Disposition

Application dismissed

Orders

  • The applicant's application be dismissed.