Berzins Specialty Bakeries Pty Ltd v Montys Continental Bakery (VIC) Pty Ltd & Anor [1987] FCA 540

JUDGMENT No. 2407..3-L.

CATCHWORDS Trade Marks - Infringement - Whether use tin good faith as description of character of goods. Trade Practices - Consumer protection - Misleading or deceptive conduct - Passing orf - Use by baker of name "Fritikin" on bread wrapper - Likelihood of confusion with bread manufactured by

registered user of trade mark "Pritikin".

Trade Marks Act 1955 - ss. 24, 26(1), 59, 60, 64(1)(b) and 78 Trade Practices Act 1374 - ss. 52, 53 and 55

F.H. Faulding & Co. Ltd. v. I.C.2. Ltd. (13564) 112 C.L.R. 537

Mark Foy s Ltd. v. Davies Coop & Co. Ltd. (1950) 395 C.L.R. 130 Caterpillar Loader Hire (Holdings) Pty. Ltd. v. Caterpillar

Tractor Co. (1983) 48 A.L.R. 511

Hunters Products Fty. Gtd. vv. Rk. & C. Products Fty. Ltd. \1l9a7) A.T.P.R. 48, 563

149 c.0.R. 131

BERZINS SPECIALTY BAKERIES FTY. OCIMITED v. MONTY S CONTINENTAL BAKERY (VIC.) PTY. LTD. (trading as Monty s Continental Bakery) AND PRITIKIN PROGRAMS INC.

NSW G213 of 1587

Jenkinson J. Melbourne

9 October, 1987

IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NSW G213 of 1987 GENERAL DIVISION -

BETWEEN: BERZINS SPECIALTY BAKERIES PIvY. LIMITED Applicant AND: MONTY'S CONTINENTAL BAKERY (VIC.) PTY. LIMITED (trading as Monty's Continental Bakery)

First Respondent

B

PRITIKIN PROGRAMS INC.

Second Respondent

CORAM: Jenkinson J. PLACE: Melbourne DATE: 3 October, 1987

REASONS FOR JUDGMENT

Trial of questions in a proceeding.

The word "Pritikin" is the name of an American, Nathan Pritikin, who has been well known in this country during the present decade. The word has been registered in Part A of the Australian Register of Trade Marks as a trade mark in respect of all goods in class No. 30, which includes bread, for 7 years from 13 November 1981. The second respondent is the registered proprietor of the trade mark, Nathan Pritikin having died after