Koninklijke Philips Electronics NV v Remington Products Australia Pty Limited [2000] FCA 876

FEDERAL COURT OF AUSTRALIA

Koninklijke Philips Electronics NV v Remington Products Australia Pty Limited [2000] FCA 876 TRADE MARKS – representations of the shaving surface of a triple rotary shaver the three rotary heads being configured as an equilateral triangle, registered as trade marks under the Trade Marks Act 1955 – effect of the inclusion of a "shape" in signs that can be used as trade marks under the Trade Marks Act 1995 – whether rival vendor of rotary shavers infringed by putting triple rotary shavers on the market or by representations of their shaving surface in packaging and advertising – the nature of a trade mark use – the meaning of use of a trade mark "upon, or in … relation to … goods" – whether the goods themselves can constitute a trade mark – whether the mark must have a separate identity from that of the goods – discussion of the meaning of "distinguish" in s 41 of the Trade Marks Act 1995 – discussion of whether a container can be a mark. REGISTERED DESIGN – fraudulent or obvious imitation – product simply not an imitation at all – principal difference from registered design an inevitable consequence of the nature of the goods, not due to a manipulation to disguise copying – nature of monopoly in a registered design – the criticality of appearance to the eye discussed as having the corollary that particular weight is to be given to the decision of the trial judge unless some error in his judgment has been demonstrated – whether it was an error not to give separate and particular attention to the appearance of so much of a shaver as was revealed through its packaging – whether it is necessary rather to consider the whole of the object said to be an imitation of the registered design – consideration of the nature of the fraudulent element in a fraudulent imitation. SECTION 52, TRADE PRACTICES ACT – circumstances where labelling with the respondent's own brand negatived misleading conduct. EVIDENCE – whether s 135 of the Evidence Act 1995 gives a discretion to reject evidence in circumstances where at common law it could be rejected as too remote. Trade Marks Act 1995, (Cth), ss 6, 7(4), 17, 20(1), 120, 233(1) Trade Marks Act 1955 (Cth), ss 58, 62 Trade Practices Act 1974 (Cth), s52 Evidence Act 1995 (Cth), ss 55(1), 56, 135 Designs Act 1906 (Cth), s 30