Shoshana Pty Ltd & Anor v 10th Cantanae Pty Ltd & Ors [1987] FCA 786

MINGUENT M5, 100; G2:

CATCHWORDS

Trade Practices Act ss. 52 and 53(c) and (d) ~ Passing off - Claims for injunction and damages - Character merchandising - Advertisement using name of well known television personality - Defence that character in advertisement was intended to be fictitious - Whether damages for passing off can be awarded where the passing off was unintentional and not fraudulent ~ The effect of persistence with knowledge in the passing off - Effect of advertisement upon inattentive readers - Parkdale Custom Built Furniture Proprietary Limited v. Puxu Proprietary Limited 149 C.L.R. 191 distinguished in respect of advertisements - Effect of lack of evidence of persons actually deceived - Passing off where the parties are engaged in quite different fields of activity but there is a misrepresentation of endorsement - Injunction refused since unintentional breaches had been discontinued well before

action notwithstanding section 80(4) of the Trade Practices Act - Admissibility of opinion survey evidence = Whether hearsay -

Whether admissible as expert evidence - Whether admissible under Business Records Provisions of Evidence Act - Rule of evidence that a person's state of mind may be proved by statements he has made - Measure of damages under the Trade Practices Act and for passing off ~ Whether damages can be awarded for passing off on

the basis of the fee that would have been required for an authorized use of the applicant's name.

Trade Practices Act 1974, ss.52, 53(c) and (d), 80(4)

SHOSHANA PTY LIMITED and SUE SMITH -V- lLOTH CANTANAE PTY LIMITED & ORS.

NSW G.171 of 1985

Burchett J. Sydney 4 16 June 1987 '

A RECEIVED ~ 1MAR1968

FEDERAL COURT OF AUSTRALIA

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IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION