Red Bull Australia Pty Limited v Sydneywide Distributors Pty Limited [2001] FCA 1228

FEDERAL COURT OF AUSTRALIA

Red Bull Australia Pty Limited v Sydneywide Distributors Pty Limited [2001] FCA 1228

N 197 OF 2001

SUMMARY

In accordance with the practice of the Federal Court in certain cases of public interest, I have prepared this brief summary to accompany the Reasons for Judgment that are being delivered today. This summary is necessarily incomplete. The only authoritative pronouncement of my reasons is that contained in the full Reasons for Judgment.

The proceedings brought by the abovenamed Applicant Corporations (Red Bull) against the abovenamed Respondents (Sydneywide and Mr Klimis respectively) are for injunctions (inter alia) to restrain Sydneywide from passing off the product LiveWire in its present packaging in 250ml cans and 330ml bottles as the product of Red Bull, and from misleading and deceiving consumers to such effect, and also to restrain Mr Klimis, the managing director of Sydneywide, from procuring inducing or being knowingly concerned in such conduct of Sydneywide.

Red Bull presently imports into and supplies for sale in Australia a carbonated taurine energy drink under the registered trade mark Red Bull. It has undertaken since about 1997 a substantial marketing and advertising campaign in Australia of its Red Bull product, with placed emphasis upon the unique blue silver and red colour arrangement, and other features, of the packaging of its only container, namely a 250ml cylinder can. In late 1998, Red Bull obtained approval from AQIS for importation of Red Bull into Australia, and the first commercial sales occurred in Australia in March 1999.

There are between 20 and 25 different energy drinks currently available for sale in Australia and sold in 250ml cylinder cans. Red Bull's entry into the Australian market was highly successful, due at least in large part to the extent of its advertising and promotional campaigns. Sydneywide became a substantial distributor of Red Bull in Australia from early 2000, pursuant to arrangements made in the latter part of 1999. It was also a substantial distributor of other energy drinks and soft drinks in Australia. During the period from late 1999 until early 2001, that is to say, essentially during the period of its business association with Red Bull, Sydneywide planned secretly for the manufacture in New Zealand and importation into Australia of its own intended energy drink. At least by the time of the launch of Sydneywide's product under the trade mark LiveWire, Red Bull and another product marked as "V" had became by far and away the two leading energy drink products in Australia.