Crusta Fruit Juices Pty Ltd v Cadbury Schweppes Pty Ltd [1995] FCA 489

CATCHWORDS TRADE MARKS - infringement - interlocutory injunction - whether "Cresta" is deceptively similar to "Crusta" - test of whether general impression created by each mark is such that persons of ordinary intelligence and memory likely to infer that two classes of product come from same source - balance of convenience against grant of interlocutory injunction. Trade Marks Act 1955 (Cth) ss 23, 31, 56, and 62 Trade Marks Regulations 1958 (Cth) reg 6, Sch 4 Federal Court Rules 1976 (Cth) O 10 r (2)(j) The Shell Company of Australia Limited v Esso Standard Oil (Australia) Limited (1963) 109 CLR 407 Polaroid Corporation v Sole N Pty Ltd [1981] 1 NSWLR 491 Coca Cola Co. of Canada Ltd v Pepsi Cola Co. of Canada Ltd (1942) 59 RPC 127 No. SG 40 of 1995 CRUSTA FRUIT JUICES PTY LTD v CADBURY SCHWEPPES PTY LTD Branson J Adelaide 13 July 1995

IN THE FEDERAL COURT OF AUSTRALIA) ) SOUTH AUSTRALIA DISTRICT REGISTRY) No. SG 40 of 1995 ) GENERAL DIVISION ) BETWEEN: CRUSTA FRUIT JUICES PTY LTD Applicant - and - CADBURY SCHWEPPES PTY LTD Respondent MINUTES OF ORDER CORAM: Branson J PLACE: Adelaide DATE: 13 July 1995 THE COURT ORDERS THAT: 1. The application for an interlocutory injunction is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA) ) SOUTH AUSTRALIA DISTRICT REGISTRY) No. SG 40 of 1995 ) GENERAL DIVISION ) BETWEEN: CRUSTA FRUIT JUICES PTY LTD Applicant - and - CADBURY SCHWEPPES PTY LTD Respondent REASONS FOR DECISION CORAM: Branson J PLACE: Adelaide DATE: 13 July 1995 The applicant is a producer and distributor of fruit juices and fruit drinks. It is the registered proprietor of the trade mark "Crusta" in respect of all goods in class 32 including citrus juices (see Trade Marks Act, 1955 (Cth) s31 and Trade Marks Regulations 6 and Schedule 4). The applicant has distributed its fruit drink products in South Australia since 1974 and has caused them to be distributed in Victoria since late 1992 and in Western Australia since October 1993. The Western Australian distribution of the applicant's products is not controlled by the applicant and comprises less than half of one percent of the applicant's turnover. There is no direct evidence before me as to the scale of the applicant's business. However its 1994 annual return filed