Dr Martens Australia Pty Ltd v Rivers (Australia) Pty Ltd [1999] FCA 1655

FEDERAL COURT OF AUSTRALIA

Dr Martens Australia Pty Ltd v Rivers (Australia) Pty Ltd [1999] FCA 1655 TRADE PRACTICES ‑ Misleading and deceptive conduct ‑ Trade dress and get‑up of appellants' Dr Martens Z welt footwear comprises specific distinctive features ‑ Respondents produced their own footwear displaying the distinctive features ‑ Respondents' footwear labelled with their own brands ‑ Whether appellants' reputation in distinctive features alone or in distinctive features in conjunction with branding, markings and labelling on footwear ‑ Whether branding, markings and labelling on respondents' footwear, price differential and potential purchasers' awareness of existence of imitations removed likelihood of potential purchasers being misled or deceived ‑ Whether manufacture and display of respondents' shoes amounts to misrepresentation notwithstanding that prior to purchase consumers would realise the shoes were not those of appellants ‑ Whether trial judge erred in finding that only an insubstantial or insignificant number of purchasers would be misled or deceived ‑ Whether potential purchasers would believe respondents' footwear had been produced under licence from or in association with appellants ‑ Whether enabling purchasers to give false impression they are wearing appellants' footwear amounts to misleading and deceptive conduct in trade and commerce ‑ Whether distinction between copying design and copying get‑up for purposes of determining whether conduct misleading or deceptive – Whether respondents engaged in passing off. Trade Practices Act 1974 ss 52, 53 and 55 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1981) 149 CLR 191 applied Philips Electronics NV v Remington Products Australia Pty Ltd (1997) 39 IPR 283 cited Guide Dogs Owners' and Friends' Association Inc v Guide Dog Association (1999) 43 IPR 531 cited S & I Publishing Pty Ltd v Australian Security Life Saver Pty Ltd (1998) 43 IPR 581 cited Schweppes Ltd v Gibbens (1905) 22 RPC 601 considered