Newton-John, O. v. Scholl-Plough (Australia) Ltd [1986] FCA 221

CATCHWORDS

Section 52 Trade Practices Act 1974 - Passing off - Application for interlocutory injunction - Alleged appropriation of well known singer's name - Circumstances in which there was no

deception - Injunction refused.

Trade Practices Act 1974, s.52, s.53

Radio Corporation Proprietary Limited v. Disney (1937) 57 C.L.R. Nostac Enterprises Pty. Ltd. v. New Concept Import Services Pty. Ltd. (1981) 3 A.T.P.R. 43,133 M.K. Hutchence et Org. (trading as "INXS") v. South Seas Bubble

Company Pty. Limited (Trading as ""Bootleq T-Shirts") (1986) A.T.P.R. 40-667

OLIVIA NEWTON-JOHN -V- SCHOLL-PLOUGH (AUSTRALIA) LIMITED NSW G.208 of 1986

Burchett J. Sydney 29 May 1986

IN _THE FEDERAL COURT OF AUSTRALIA NEW SOUTH S DISTRICT REGISTRY

GENERAL DIVISION

No. G.208 of 1986

wee ww

BETWEEN : OLIVIA NEWTON-JOHN Applicant AND:

SCHOLL-PLOUGH (AUSTRALIA) LIMITED

Respondent MINUTE OF ORDER

Judge Making Order: Burchett J. Date of Order: 29 May 1986 Where Made: Sydney THE COURT ORDERS THAT:

The application be dismissed. Note: Settlement and entry of order is dealt with by Order 36

of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISTON

No. G.208 of 1986

BETWEEN : OLIVIA NEWTON-JOHN

Applicant

SCHOLL-PLOUGH USTRALIA) LIMITED

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

BURCHETT J.

Having had the benefit of the very careful argument that Mr. Tobin has put to me, I am able to give judgment at once. I take as the test whether there is a serious question to be tried. The applicant's argument is that certain advertisements - and there are some advertisements in evidence of which I think one can be taken as typical since variations are quite slight - convey for the purposes of sections 52 and 53 of the Trade Practices Act 1974 a representation which she says is misleading, and she also says that the advertisements convey a message which