The Kettle Chip Co Pty Ltd (Now Known as ACN 003 655 132 Pty Ltd) v Apand Pty Ltd (Formerly CCA Snack Foods Pty Ltd & Anor [1998] FCA 586

FEDERAL COURT OF AUSTRALIa

ACCOUNT OF PROFITS )

PASSING OFF ) - whether deductions should be made for fixed costs as well as variable costs in taking an account of profits - effect of finding that, if there had been no passing off, a smaller percentage of fixed costs would have been recouped - whether such a finding reveals a relevant profit - onus on respondents to show a reasonably acceptable basis of allocation - meaning, in respect of overheads, of "attributable to the manufacture and sale of the infringing product" - discussion of the nature and significance of opportunity cost - 30% of allocated fixed costs allowed on the basis that the opportunity forgone would not have recouped more than that percentage of those costs - where the business involving passing off was sold, whether an account of profits should include capital profits realized by the sale - nature of the remedy of account of profits - requirement to account for "such advantage" as the infringer may have derived - unjust enrichment - onus where capital profit includes value of legitimate businesses - trademarks, goodwill - whether respondents entitled to an allowance for pre-existing goodwill contributed to the infringing business - whether interest should be allowed on the principles on which an account is taken, or under s 51A of the Federal Court of Australia Act - when interest should run from and appropriate rate.

PRECEDENT - discussion of application of doctrine where there is no controlling authority.

Federal Court of Australia Act 1976, s 51A

The Kettle Chip Company Pty Limited v Apand Pty Limited (1993) 46 FCR 152 applied Apand Pty Limited v The Kettle Chip Company Pty Limited (1994) 52 FCR 474 applied Australian Woollen Mills Limited v F. S. Walton & Co Ltd (1937) 58 CLR 641 referred to Dart Industries Inc. v The Decor Corporation Pty Ltd (1993) 179 CLR 101 applied Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 applied Schnadig Corporation v Gaines Manufacturing Company, Inc (1980) 620 F 2d 1166 applied Cartier v Carlile (1862) 31 Beav 292; 54 ER 1151 applied Re Yamashita (1946) 327 US 1 dictum applied Colbeam Palmer Ltd v Stock Affiliates Pty Ltd (1968) 122 CLR 25 dictum applied Potton Limited v Yorkclose Limited [1990] FSR 11 applied Baltic Shipping Company v Dillon (1993) 176 CLR 344 referred to Duplate Corporation v Triplex Safety Glass Co. (1936) 298 US 448 applied Business Trends Analysts, Inc. v The Freedonia Group, Inc. (1988) 700 F Supp 1213 referred to Commonwealth of Australia v SCI Operations Pty Ltd (1998) 152 ALR 624 dictum applied Warman International Limited v Dwyer (1995) 182 CLR 544 dictum applied Namol Pty Limited v A W Baulderstone Pty Limited (No 2) (1993) 47 FCR 388 applied Alec Finlayson Pty Limited v Armidale City Council (unreported, Burchett J, 6 March 1998) applied Nagy v Masters Dairy Ltd (1997) 150 ALR 301 applied