Frito-Lay Trading Company GmbH v Aldi Stores Limited Partnership [2001] FCA 969

FEDERAL COURT OF AUSTRALIA

Frito-Lay Trading Company GmbH v Aldi Stores Limited Partnership

[2001] FCA 969

TRADE MARKS – alleged infringement of registered word mark "Twisties" – whether sign used as trade mark or merely descriptive of goods – use of "twists" as descripter – whether "cheezy" also used as descripter – where infringing mark deceptively similar to registered trade mark – aural representation in breach of rights of owner of registered mark – defence of good faith – where not made out – defence of honest concurrent user not made out

Trade Marks Act 1995 (Cth) ss 6, 7, 10, 17, 120(1), 122(1)(b), 122(1)(f)

Wingate Marketing Pty Ltd v Levi Strauss & Co (1994) 49 FCR 89 referred to CA Henschke & Co v Rosemount Estates Pty Ltd (1999) 47 IPR 63 referred to CA Henschke & Co v Rosemount Estates Pty Ltd (2000) AIPC 91-640 applied Coca Cola Company v Al-Fect Distributors Ltd (1999) 96 FCR 107 referred to Australian Woollen Mills Ltd v FS Walton & Co Ltd (1937) 58 CLR 641 applied Cooper Engineering Co Pty Ltd v Sigmund Pumps Ltd (1952) 86 CLR 536 applied The Shell Company of Australia Ltd v Esso Standard Oil (Australia) Ltd (1963) 109 CLR 407 applied Southern Cross Refrigerating Company v Toowoomba Foundry Pty Ltd (1954) 91 CLR 592 applied Unilever Australia Ltd v PB Foods Ltd (1999) 47 IPR 358 referred to

FRITO-LAY TRADING COMPANY GmbH v ALDI STORES LIMITED PARTNERSHIP N 180 OF 2001 GYLES J SYDNEY 23 JULY 2001

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 180 OF 2001

BETWEEN: FRITO-LAY TRADING COMPANY GmbH

APPLICANT

AND: ALDI STORES LIMITED PARTNERSHIP

RESPONDENT

JUDGE: GYLES J

DATE OF ORDER: 23 JULY 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: The proceeding be stood over to enable the parties to bring in short minutes to give effect to the reasons for judgment. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.