24 Feb 2010
N V SUMATRA TOBACCO TRADING COMPANY V BRITISH AMERICAN TOBACCO (BRANDS) INCORPORATED CA761/2008
- Citation
- openlaw-71881266_4bd5_413d_b908_7beb7a656164.pdf
- Court
- Court of Appeal
On a global assessment under s17 the Court found LUCKY DRAW and LUCKY DREAM are sufficiently similar to BAT's LUCKY STRIKE (prominent shared element 'LUCKY', conceptual overlap and risk under imperfect recollection) that N V Sumatra failed to discharge the onus of showing there is no reasonable likelihood of deception or confusion; on s16 the Court held the evidential threshold is awareness/knowledge in the relevant market and BAT met that threshold so Clifford J's higher 'substantial reputation' test was incorrect and the cross-appeal is allowed.