Federal Court of Australia
CATCHWORDS
TRADE PRACTICES - market for coolers - applicants' product "West Coast Cooler" - heavily advertised ~ association of coastal image with applicants' product - whether calling rival product "Coastal Cooler" misleading or deceptive conduct - whether mere confusion or uncertainty - disbelief of evidence
entitling court to infer opposite - no intention to mislead or
deceive. Trade Practices Act 1974 ss.52,53
Parkdale Custom Built Furniture Pty Ltd v. Puxu Pty Ltd (1982) 149 C.L.R. 191. Taco Company of Australia Inc v. Taco Bell pty Ltd (1982)
42 A.L.R. 177.
Steinberg v. Federal Commissioner of Taxation (1975)
134 C.L.R. 640.
Cadbury Schweppes Pty Ltd v. Pub Squash Co Pty Ltd (1982) 32 A.L.R. 387.
IRISH DISTILLERS LTD & ORS v. S. SMITH & SON PTY LTD & ANOR No. G514 of 1986
Jackson J. 5th December 1986
Sydney.
4 IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
BETWEEN:
CORAM: JACKSON J. DATE: 5 December 1986 PLACE: Sydney
ere eee
No. G514 of 1986
IRISH DISTILLERS LIMITED
First Applicant
PENFOLDS WINES PTY. LIMITED
Second Applicant
THE WEST COAST COOLER
COMPANY PTY. LIMITED
Third Applicant
S. SMITH & SON PTY.
LIMITED
First Respondent
THE VINTNERS COMPANY PTY. LIMITED
Second Respondent
REASONS FOR JUDGMENT
These are proceedings in which the applicants seek
relief in respect of alleged contraventions of s.52(1) of the
Trade Practices Act 1974, of s.53 of the same Act, and in
respect of passing off.
The applicants are engaged in manufacturing and distributing a brand of low alcohol fruit flavoured wine drink (or "cooler") under the name of "West Coast Cooler". The first applicant is an Irish company which 1s a subsidiary of Irish Distillers Group PLC which in early 1984 had developed the product which was test-marketed in Ireland under the name of "West Coast Cooler". The first applicant began manufacturing West Coast Cooler in early 1985 and has appointed licensees to manufacture, market and sell West Coast Cooler around the world. The second applicant, pursuant to an agreement dated 30th September 1985 between itself and the first applicant has an exclusive license to manufacture, market and sell West Coast Cooler in Australia and other South Pacific countries. The third applicant, a subsidiary of the second applicant, appears to be the actual manufacturer of
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