Wander Ltd v Barlow Group Ltd [1982] FCA 315

Wander Ltd v Barlow Group Ltd [1982] FCA 315

Interlocutory relief was refused because, although there is apparent similarity between 'Modifast' and 'Medifast' and a possibility of confusion, the applicant's product had not been marketed in Australia and had not established reputation or distinctiveness in the relevant market. Furthermore, evidence did not establish a prima facie case of real risk of people actually being misled or deceived as required under s.52 of the Trade Practices Act 1974 and for passing off. Mere confusion is insufficient.

Parties
Applicant: Wander Limited; Respondent: Barlow Group Limited
Jurisdiction
Australia
Judgment Date
23 August 1982
Procedural Posture
Application for Interlocutory Relief / Interlocutory Application Reasons for Judgment
Outcome
Application dismissed
Legal Topics
Misleading or Deceptive Conduct, Passing Off, Interlocutory Injunction
Trade Practices Intellectual Property Misleading or Deceptive Conduct Passing Off Interlocutory Injunction

Case Brief

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Parties

Wander Limited

Applicant

Barlow Group Limited

Respondent

Procedural Posture

Application for Interlocutory Relief / Interlocutory Application Reasons for Judgment

Legal Issues

  1. 1 Whether the respondent's marketing of 'Medifast' breaches s.52 of the Trade Practices Act 1974
  2. 2 Whether there is passing off by the respondent against the applicant's product 'Modifast'
  3. 3 Whether interlocutory relief should be granted to restrain the respondent from marketing 'Medifast'

Ratio Decidendi

Interlocutory relief was refused because, although there is apparent similarity between 'Modifast' and 'Medifast' and a possibility of confusion, the applicant's product had not been marketed in Australia and had not established reputation or distinctiveness in the relevant market. Furthermore, evidence did not establish a prima facie case of real risk of people actually being misled or deceived as required under s.52 of the Trade Practices Act 1974 and for passing off. Mere confusion is insufficient.

Court Disposition

Application dismissed

Orders

  • Application for interlocutory injunction dismissed
  • Further interlocutory matters listed for hearing on 20 September