Dairy Industry Marketing Authority v. Southern Farmer Co-Operation Ltd [1982] FCA 17

CATCHWORDS

Trade Practices - s. 52; passing-off; unfair competition;

breach of copyright - applicants and respondent sell in South Australia packaged flavoured milk drinks.

s. 52 and passing-off - whether relevant packs and television advertisements thereof substantially the same or deceptively similar to each other.

- unfair competition - whether there has been "something underhand or sharp" in the conduct of the respondent - whether the respondent has made a false representation about its goods.

- copyright - whether the respondent has infringed any copyright.

Trade Practices Act 1974 (Cth.) s. 52

DAIRY INDUSTRY MARKETING AUTHORITY, DAIRY VALE METRO CO-OPERATIVE

LIMITED, SCHOFIELD SHERBON BAKER PTY. LIMITED Applicants

SOUTHERN FARMERS CO-OPERATIVE LIMITED Respondent

NO. G2 OF 1982 LOCKHART J. AT SYDNEY

29 JANUARY 1982

IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NO. G2 OF 1982

) GENERAL DIVISION )

BETWEEN: DAIRY INDUSTRY MARKETING AUTHORITY, DAIRY VALE METRO CO-OPERATIVE LIMITED, SCHOFIELD SHERBON BAKER PTY, LIMITED

Applicants AND: SOUTHERN FARMERS CO-OPERATIVE LIMITED Respondent REASONS FOR JUDGMENT LOCKHART J. 29 JANUARY 1982

Australians are well known as beer drinkers; but they also like milk. In the case of only one brand of flavoured milk known as "Moove" its retail sales value in New South Wales alone is currently in excess of $3.2 million per annum.

This case is part of a struggle for control of the flavoured milk market in South Australia. Earlier this month Dairy Vale Metro Co-Operative Limited, the second applicant, a company incorporated in South Australia, commenced to market in South Australia under licence from Dairy Industry Marketing Authority, the first applicant, a flavoured milk product described as "Good One Malt & Honey". Also earlier this month Southern Farmers Co-Operative Limited, the respondent, also incorporated in South Australia, commenced to market in South Australia a flavoured milk product described as "Malt 'N' Honey".