Cat Media Pty Limited v Opti-Healthcare Pty Limited [2003] FCA 133

FEDERAL COURT OF AUSTRALIA

Cat Media Pty Limited v Opti-Healthcare Pty Limited [2003] FCA 133

TORT – passing-off – whether respondent's product Fat Terminator passed-off as applicant's product Fat Blaster or associated with applicant or applicant's product – decision turns on facts – packaging of identical size – substantially similar colour schemes – use of similar models – substantially similar layout of package face – product names with similar connotations – evidence of copying TRADE PRACTICES – s 52 Trade Practices Act 1974 (Cth) misleading and deceptive conduct – whether consumers likely to be misled or deceived as to whether respondent's product Fat Terminator was applicant's product Fat Blaster or associated with applicant or applicant's product – decision turns on facts - packaging of identical size – substantially similar colour schemes – use of similar models – substantially similar layout of package face – product names with similar connotations – evidence of copying

Trade Practices Act 1974 (Cth) ss 52, 53(c), 53(d), 53(eb)

QDSV Holdings Pty Ltd v Trade Practices Commission (1995) 59 FCR 301 cited Trade Practices Commission v Pacific Dunlop Ltd (1994) ATPR 41-307 cited Siddons Pty Ltd v Stanley Works Pty Ltd (1991) 29 FCR 14 cited Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 referred to Conagra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302 cited Reckitt & Coleman Products Ltd v Borden Inc (1990) 17 IPR 1 cited Vieright Pty Ltd v Myer Stores Ltd (1995) 31 IPR 361 applied Australian Woollen Mills Ltd v FS Walton and Company Limited (1937) 58 CLR 641 referred to Pacific Publications Pty Ltd v IPC Media Pty Ltd [2003] FCA 104 cited CAT MEDIA PTY LIMITED ACN 077 817 522 v OPTI-HEALTHCARE PTY LIMITED ACN 086 645 883 N 946 OF 2002 BRANSON J 4 MARCH 2003 SYDNEY