FEDERAL COURT OF AUSTRALIA Fyna Foods Australia Pty Ltd (ACN 004 981 328) v Cobannah Holdings Pty Ltd (ACN 009 310 810) [2004] FCA 1181 TRADE PRACTICES AND PASSING OFF — interlocutory injunction Trade Practices Act 1974 (Cth) s 52 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 referred to Kettle Chip Company Pty Ltd v Apand Pty Ltd (1993) 119 ALR 156 referred to Red Bull Australia Pty Ltd v Sydneywide Distributors Pty Ltd (2001) 53 IPR 481 referred to Cadbury Schweppes Pty Ltd v Pub Squash Co Pty Ltd [1980] 2 NSWLR 851 referred to Bullock v Federated Furnishing Trades Society of Australasia (1985) 60 ALR 235 referred to FYNA FOODS AUSTRALIA PTY LTD (ACN 004 981 328) V COBANNAH HOLDINGS PTY LTD (ACN 009 310 810) V 782 of 2004 KENNY J MELBOURNE 9 SEPTEMBER 2004 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 782 OF 2004 BETWEEN: FYNA FOODS AUSTRALIA PTY LTD (ACN 004 981 328) APPLICANT AND: COBANNAH HOLDINGS PTY LTD (ACN 009 310 810) RESPONDENT JUDGE: KENNY J DATE OF ORDER: 9 September 2004 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application for injunctive interlocutory relief be dismissed. 2. On or before 4.30pm on 10 September 2004 the respondent file and serve an affidavit as to costs incurred as at 30 July 2004. 3. The parties file and serve any further short submissions as to costs on or before 12.30pm on 13 September 2004. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 782 OF 2004 BETWEEN: FYNA FOODS AUSTRALIA PTY LTD (ACN 004 981 328) APPLICANT AND: COBANNAH HOLDINGS PTY LTD (ACN 009 310 810) RESPONDENT JUDGE: KENNY J DATE: 9 SEPTEMBER 2004 PLACE: MELBOURNE REASONS FOR JUDGMENT introduction 1 Broadly speaking, this proceeding concerns packaging for sherbet confectionery products. By its application filed on 21 June 2004, the applicant seeks interlocutory injunctive relief restraining the respondent from using packaging or get-up corresponding to that described in paragraph nine of its statement of claim, or packaging or get-up which is the same as, or a colourable imitation of, the get-up described in paragraph six of its statement of claim. Exhibit "JH 6" to the affidavit of Jacqueline Harvey, sworn on 10 June 2004, is a green and gold lemon flavoured sample of the get-up that is the subject of complaint. As it happens, counsel for respondent stated that the respondent now markets its product only in orange, grape and strawberry flavours, which are packaged in corresponding orange, purple and pink colours. 2 In determining whether the applicant is entitled to this relief, the first question is whether the applicant has established that there is a serious question to be tried: see Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148. 3 By its statement of claim, also filed on 21 June 2004, the applicant claims that the respondent has engaged in passing off and misleading or deceptive conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth) ("the TPA"). the evidence 4 In support of its application for interlocutory relief, the applicant relies on the affidavits of Jacqueline Harvey sworn on 10 June 2004 and Richard Martin Ahmed sworn on 25 August 2004, together with their accompanying exhibits. In opposition, the respondent relies upon the affidavits of Ronald Ian Klein filed 10 August 2004 and David Hilton Goldman, also filed 10 August 2004, and their accompanying exhibits. 5 Jacqueline Harvey, the applicant's managing director, has deposed that the applicant is a family owned company that operates a confectionery manufacturing business, which was started in 1947. According to Ms Harvey, the applicant manufactures and sells a range of confectionery products, and its best known brand is "Wizz Fizz" sherbet powder. She said that: Although the appearance of the packets has changed over the years, the product and packaging have remained constant, although the images on the packaging were changed in 1996 following market research. 6 The applicant registered "WIZZ FIZZ" as a trade mark in the 1980s. According to Ms Harvey, "Wizz Fizz" is distributed through confectionery wholesalers who sell it throughout Australia to retail outlets, such as supermarkets, milk bars and school canteens. Many of the customers are children. It is important, according to Ms Harvey, for potential customers to see the product and recognise it quickly, because market research has indicated that most purchases of "Wizz Fizz" are the result of impulse buying. She added: In 1996, following some extensive market research, [the applicant] radically changed the appearance of "Wizz Fizz" packets. Until that time, the packets had pictures of Disney characters of them. According to the market research, consumers identified the packaging of "Wizz Fizz" more with bright, vibrant colours, its shape and its texture. Nevertheless, the market researchers recommended that a new packaging design be implemented to attract the attention of children. This led to the development of a range of six exaggerated cartoon faces printed on display boxes in individual packets. … Prominently printed on each box and each packet of "Wizz Fizz" are the words "WIZZ FIZZ" in capital letters. Altogether, the changes cost the company around $200,000. 7 Mr Goldman, the respondent's managing director, has deposed that the respondent is a supplier of confectionery in Australia, trading under the business name Tasty Treats. Tasty Treats has been in business in Australia for over 16 years. Mr Goldman said that the respondent supplies and sells a range of confectionery products to supermarkets, milk bars, delicatessens, fun fairs or shows and other confectionery retailers. He believes that the business has acquired a strong reputation, both within the trade and amongst consumers. 8 Mr Goldman applied to register the trade mark "GET FIZZED" on 27 November 2000, and the mark was sealed for registration on 15 October 2001. According to Mr Goldman, on 19 November 2002, he asked a Malaysian based manufacturer, Dickfield Industries (M) Sdn Bhd ("Dickfield Industries") to produce two products to be sold under this mark. One product was to be sherbet. Mr Goldman said: It is [the respondent's] usual practice to arrange for the artwork for its product packaging to be created in Australia. However, in the case of the GET FIZZED products, I was informed by Kenny Lowe … the Managing Director of Dickfield Industries, and I believe, that they employed a good in-house graphic designer and they offered to prepare the packaging artwork for [the respondent]. I accordingly asked Dickfield Industries to come up with an attractive new design for the GET FIZZED packaging. 9 Mr Goldman deposed that he provided Mr Lowe: … with the text that was required to be included on the packaging for both the Get Fizzed sherbet and the Get Fizzed finger pop products, including a barcode, our Tasty Treats corporate logo, and a statement that it was imported by Tasty Treats and the ingredient list as required by Australian health regulations. He added that "[o]ther than this text, I left the design for the packaging artwork entirely up to Dickfield Industries' graphic designer. I approved the packaging artwork for both products on 3 February 2003." 10 According to Mr Goldman, the respondent received the first shipment of both products in March 2003 and started supplying them to the Australian market in the same month. He deposed that, prior to a letter of 24 June 2003 from the applicants' lawyers, he had heard of a product by the name of Wizz Fizz in the market place, but had not seen the product or its packaging. He considered the "Get Fizzed" and "Wizz Fizz" products to be clearly distinguishable. 11 On 1 July 2003, the respondent received a letter dated 24 June 2003 from the applicant's lawyers alleging that the respondent's GET FIZZED SHERBET product infringed the applicant's intellectual property rights in the trade mark WIZZ FIZZ and associated packaging. (I note that there is a disclaimer in the applicant's trade mark registration for the word "Fizz".) On 4 July 2004, Mr Goldman said that he instructed the respondent's lawyers to settle the dispute, without any admission of liability, by agreeing immediately to change the packaging artwork for the GET FIZZED SHERBET product. As part of the settlement, Mr Goldman agreed to deliver up to the applicant all remaining stock of the GET FIZZED SHERBET in the respondent's possession with a sample of the alternative artwork proposed for the GET FIZZED SHERBET packaging. The applicant did not object to the GET FIZZED SHERBET (in the offending packaging) remaining in the market place and being sold until all stock was exhausted. 12 On 29 August 2003, the respondent's solicitor sent a copy of the revised artwork to the applicant's lawyers. By letter dated 9 September 2003, the applicant's lawyers advised that they had serious concerns about the revised artwork. On 15 September 2003, the applicant's lawyers advised that they considered that the revised GET FIZZED artwork to be very similar to the WIZZ FIZZ packaging in the following aspects: (1) the type and size of font used for the words GET FIZZED; (2) the use of cartoon characters; (3) the colour of the packaging; and (4) the bubbles graphic that appears in the background of the artwork. 13 By a letter dated 22 September 2003, the respondent's lawyers advised the applicant's lawyers that, for reasons set out in their letter, they did not agree that the proposed revised artwork was in any way similar to that used by the applicant for its WIZZ FIZZ product. The applicant's lawyers claimed to have sent a further communication by facsimile that, according to Mr Goldman, was not received by the respondent's lawyers. Mr Goldman deposed that, since there was no response forthcoming from the applicant's lawyers, he believed the matter had concluded. He began to supply GET FIZZED SHERBET confectionery using the revised packaging artwork into the market on 14 November 2003. 14 According to Ms Harvey, the applicant became aware that the respondent was marketing its product in the revised get-up in January 2004. The applicant's lawyers contacted the respondent's lawyers by a letter dated 2 February 2004. There was further correspondence during March 2004. Under cover of a letter dated 8 July 2004, the initiating documents for the present court proceedings were served on the respondent's solicitor. During the period 18 March 2004 to 8 July 2004, the respondent continued to sell the GET FIZZED SHERBET confectionery in the revised packaging. 15 Both parties relied on the evidence of specialists in advertising. The applicant relied on the evidence of Mr Ahmed, who is the manager and owner of an advertising agency specialising in design media placement and mainstream advertising. He deposed that "[b]randing is singularly the most important aspect to marketing a product in today's shopping environment" and that "[b]uilding a successful brand such as Wizz Fizz and keeping it a brand leader takes many years and a great deal of cost in investment revenue to build brand loyalty. Wizz Fizz is an Australian icon and has been since the early 1940's." He deposed that: It is therefore in the interests of competitors to create a sense of familiarity with their products for consumers on shelf by incorporating some of the design elements of the market leader as this goes some of the way to bridging the gap of acceptance and purchase. This is also a simple way to gain a benefit from the past cost incurred by the market leader in promotion of its brand name. 16 Mr Ahmed agreed with Mr Klein (see below) that "consumers may be able to differentiate between packs of WIZZ FIZZ and GET FIZZED however there are certain product features/elements of WIZZ FIZZ that the respondent has appropriated to enhance and embed consumer perceptions of quality" and he listed these in his affidavit. He said that a consumer faced with both products "may interpret the similarities as a novel brand extension", by which he meant that the brand "Wizz Fizz" has developed an extension of itself to attract new or existing customers. He agreed with Mr Klein that consumers are able to differentiate between products, but said that some consumers "purchase impulsively when they do not have the time or are not prepared to take the time to be discerning buyers". He added that other consumers will be confused when they are confronted with brand extensions of products and may be easily misled into associating one product with another by similarities in branding, packaging and other characteristics. He said that, in the instance of Get Fizzed, the respondent has circumvented the need for promotion by mimicking certain aspects of the market leader, Wizz Fizz. 17 The respondent relied on Mr Klein, the managing director of The Klein Partnership ("TPK"), a market research firm. He deposed that consumer ability to discriminate between products, brands and packages is remarkable. He said: Children and adults have, in my experience, proven themselves to be extremely savvy and discerning when it comes to packaging, packaging graphics, brand names, brand personalities and overall get-up of a product. They can readily identify differences between products and brands. In my opinion, consumer shopping behaviour today is selective and discerning. In the rush to complete a shopping/buying task, consumers are skilled at quickly and readily detecting differences between products and brands, no matter how similar. 18 Mr Klein expressed the view that Wizz Fizz and Get Fizzed confectionary products are primarily, but not exclusively, consumed by children from 3 to about 15 years of age. They are potentially purchased by children from school age and upwards, as well as by young adults and parents of children. He deposed that: Based on my view of a broad target market for the products, I am unable to foresee any consumer confusion between GET FIZZED and WIZZ FIZZ products in the consideration, purchase or selection of the products, whether the products are displayed, available, sold or stored in individual sachets or multiple / bulk packs. It is the lack of similarity between the WIZZ FIZZ and GET FIZZED confectionery products which leads me to most confidently conclude that confusion will not prevail. 19 He gave the following reasons for reaching this conclusion: a. The brand names WIZZ FIZZ and GET FIZZED are manifestly different. b. The presentation of the brand names are very different in colour and tone. c. The presentation of the bulk packs bags is in stark contrast. WIZZ FIZZ is presented in a non-see-through plastic bag in full block colour, whereas GET FIZZED is packed in a clear bag with a cardboard top and presented in colours quite different to the WIZZ FIZZ bags. I do not consider that a consumer would ever get the two bags confused or muddled. d. The sizes and shapes of the two packs in individual form are substantially different. e. The WIZZ FIZZ product is described on the pack as "Original". This helps to differentiate it from the GET FIZZED product which describes itself simply as 'Sherbet'. f. GET FIZZED products come in a range of different coloured packs, while WIZZ FIZZ products are only available in a limited and quite different range of pack colours. g. WIZZ FIZZ products are branded with character descriptions including 'Screaming Mimi', 'Nerdy Neal', 'Dr Freak', 'Mad Myron' and 'Weird Wally'. Such character descriptions provided on the packs set WIZZ FIZZ products apart, and for children in particular, offer a differentiator in the store not existing on GET FIZZED products. h. GET FIZZED products come in a range of flavours and are individually marked according to flavour, that is, orange, grape and strawberry. In complete contrast, Wizz Fizz products are not flavour differentiated and simply come in a single flavour. Consumers look for flavour varieties when they are available and I believe that selection of GET FIZZED products would be often flavour based. i. In its bulk pack form, WIZZ FIZZ is available in an 8 pack, whereas GET FIZZED is available in a 10 pack. j. A bulk WIZZ FIZZ pack is 112g, whereas, a bulk GET FIZZED pack is 70g. It is my opinion that the extent to which consumers, including children 'do their sums' at the point of purchase should not be underestimated. From my experience, consumers can readily distinguish between two brands on the basis of different quantities which influence perceptions of value for money. Consumers would therefore be unlikely to get the brands/products confused. k. Characters are an integral part of packaging for both brands. WIZZ FIZZ characters as presented on-pack are appreciably more cartoon in style than the GET FIZZED characters on-pack. WIZZ FIZZ characters clearly convey a very different and younger personality. WIZ FIZZ characters are clearly 'more zany', 'bizarre', 'out there' and 'unreal', whereas GET FIZZED characters are more 'life like' and human in their appearance. Character presentation is integral to brand personality for each of the WIZZ FIZZ and GET FIZZED products and the characters for each brand ensure different brand personalities, in addition to quite distinctive product personalities. Consumers in my opinion would recognize and easily distinguish between these physical and brand personality distinctions. l. The focus for each WIZZ FIZZ character is on the head and face of the characters, whereas for each GET FIZZED character, we see heads, bodies, arms and legs. Again, this clearly differentiates the brands. In addition, the WIZZ FIZZ characters are more dominant and focal. m. WIZZ FIZZ characters have different personalities when compared to GET FIZZED characters. GET FIZZED characters are portrayed as being music oriented, rock stars, music lovers, bass guitarists, lead guitarists and ghetto blaster users. This is in contrast to WIZZ FIZZ on-pack personalities who can be described as screamers, gross persons, freaks, monsters, and as such are quite distinctive. the parties' submissions 20 The applicant contended that the respondent was marketing and selling "GET FIZZED" in packaging that was substantially identical with, or deceptively similar to, the packaging of the applicant's product; and that the continued marketing and sale of the respondent's product was likely to cause loss and damage to the applicant. In a written outline of argument, the applicant submitted that the most distinctive features of its current get-up are: (a) the appearance on the front of each packet of one of six different modernized cartoon characters, each with its own name. On the reverse side of the packet, the customer is invited to "Check out all the dudes at our cool website :…"; (b) a variety of backgrounds of brightly coloured stripes and bubbles, evoking the flavour and effervescent sensation associated with consuming sherbet powder; (c) the name "Wizz Fizz" at the top in large stylized font; (d) the word "Sherbet" just below it, in smaller stylized font; (e) a panel on the back containing nutritional information and a list of ingredients. WIZZ FIZZ was also packaged in a rectangular envelope made of treated paper. The applicant submitted that the language and imagery of the new packaging is plainly intended to catch the eye of, and appeal to, the contemporary child and teenage consumer. 21 The applicant submitted that the revised get-up of the respondent's product continued to imitate fundamental elements of its own get-up and the general layout of its packaging. In its submission, these elements included: (a) Most notably, the use of cartoon figures designed to appeal to children and teenagers. In stark contrast to the former Disney figures, the current Wizz Fizz characters appear offensive and shocking. Children and teenagers are invited to "check out all the dudes at our cool website"… . Similarly, the respondent's characters display what is to be rebellious and "cool". Mr Goldman himself describes them as "punk" figures … . The very name of the product, "GET FIZZED", evokes the same associations. (b) The word "FIZZ" is prominent at the top of the applicant's packets and its letters are distinctly shaped and oriented. The same letters appear similarly shaped and oriented in the word "FIZZED" in the 'Get Fizzed" packaging. (c) In both cases, the word "Sherbet" is positioned immediately below the title of the product. Its letters are now in upper case, but the font remains similar to that used on the Wizz Fizz packet. (d) Both products feature bright and vibrant colour schemes and, significantly, background bubbles; (e) The nutritional information panels on the rear of the packets are exactly the same (save in respect quantities). It is, according the applicant, "the overall impression created by the combination of these elements that gives rise to the complaint". 22 The applicant relied on The Topps Company Inc v Tom Hannah (Agencies) Ltd [2000] TLR 94 in support of the proposition that, in the case of a product that is primarily purchased by young children, the court must put itself in the position of a young child when considering whether or not there has been a passing off. Referring to Bridge Stockbrokers Ltd v Bridges (1984) 4 FCR 460 at 474 and Kettle Chip Company Pty Ltd v Apand Pty Ltd (1993) 119 ALR 156 ("Kettle Chip") at 165 per Burchett J, the applicant's counsel also submitted that it was "important to recognize that Wizz Fizz and Get Fizzed [were] products ordinary purchased with minimal consideration or critical examination of the product"; and that in these circumstances "the overall colour schemes and imagery of product packaging play[ed] a more critical role in attracting purchases". Referring to Kettle Chip at 165 and Australian Woollen Mills Ltd v F S Walton & Co Ltd (1937) 58 CLR 641 at 658 per Dixon and McTiernan JJ, the applicant submitted that, in a case such as this, whether there had been a "passing off" or breach of s 52 of the TPA depended upon the overall impression created by the product's packaging. Relying on Red Bull Australia Pty Ltd v Sydneywide Distributors Pty Ltd (2001) 53 IPR 481 ("Red Bull") at [54], [56] and [70], counsel for the applicant submitted that the question was to be determined by consideration of "the overall look and feel", "the total image", or the "gestalt" of the products. In his written outline, he said: Names, colour, schemes, physical properties, packaging, brands, and graphic elements such as symbols and designs aimed at creating associations, all contribute to this. In the present case, the get-up of Wizz Fizz seeks to attract the young person's eye through the use of off-beat cartoon character[s] or "dudes", and by appealing to what children regard as "cool". 23 Relying on Kettle Chip and Red Bull, the applicant's counsel submitted that the first version of the respondent's packaging bore such a close resemblance to the applicant's packaging that it must be inferred that one was a direct copy of the other. He submitted that, having created the potential for confusion and deception in the market by the first version of the respondent's packaging, the likelihood of confusion arising out of the modified packaging was so much greater that it cast upon the respondent a correspondingly greater obligation to defuse the deception and confusion. 24 The applicant submitted that, despite the differences in packaging between the applicant's product and the respondent's product, the overall similarity between them created a risk of confusion, which was increased by the close similarity between the respondent's first form of packaging and the applicant's product. There was, so the applicant submitted, a serious question to be tried on its claims of passing off and breach of s 52 of the TPA. 25 The applicant's counsel submitted that the balance of convenience was in favour of the grant of the interlocutory injunction, because the applicant had a long-standing reputation and valuable goodwill deserving of protection, and the continued sale of the respondent's product threatened damage to the applicant in the form of lost sales in respect of its most popular and established product. He submitted that damages would not be an adequate remedy, because the respondent's product may be inferior to the applicant's product and thereby be potentially damaging to the applicant's reputation. He further submitted that whilst the applicant had known of the respondent's product since January 2004, the delay was not so significant as to weigh against interlocutory injunctive relief. He submitted that there was no evidence to suggest that an interlocutory injunction pending the outcome of the proceedings would cause the respondent irremediable damage. 26 The respondent's counsel submitted that there were significant differences between the packaging of its own and the applicant's products; and he drew attention to many of them. He further submitted that the applicant had adduced no evidence of any confusion in the market place between the two products. Indeed, according to him, Mr Ahmed acknowledged "clear differentiation between the two products and the unlikelihood of consumers to be [sic] confused". He submitted that Mr Ahmed provided no evidence of the "gestalt" of the products and that the concept of "brand extension" to which Mr Ahmed deposed was not one known to the law. The respondent drew attention to Mr Klein's specific evidence on the ability of children to discriminate between brands. 27 The respondent's counsel submitted that Red Bull and Kettle Chips were clearly distinguishable from the present case, because Mr Goldman's evidence made it plain that there had been no deliberate attempt on his part (and therefore on the respondent's part) to copy the applicant's product, notwithstanding the resemblance between the first version of the respondent's packaging and the applicant's product. 28 Referring to Cadbury Schweppes Pty Ltd v Pub Squash Co Pty Ltd [1980] 2 NSWLR 851 ("Cadbury Schweppes") at 859, Dairy Industry Marketing Authority v Southern Farmers Co-operative Ltd (1982) ATPR 40-273 at 43,467, Irish Distillers Ltd v S Smith & Son Pty Ltd (1986) 7 IPR 509 at 511, the respondent's counsel submitted that the use of a descriptive word like "fizz" in relation to sherbet will always lead to the possibility of confusion by members of the public. According to him, this risk of confusion by the use of a descriptive word does not, in a case such as this, establish passing off or breach s 52 of the TPA. In connection with s 52, counsel referred to Hornsby Building Information Centre Pty Ltd v The Sydney Building Information Centre Limited (1977) 140 CLR 216 at 229-230, observing that, in the case of the TPA, the Court is concerned with conduct that is deceptive to members of the public as consumers, and not with the protection of the reputation or goodwill of competitors as such. 29 Counsel for the respondent submitted that it was ultimately for the Court to assess whether the get-up of the packaging of the two products is the same, or deceptively similar to each other. He submitted that, having regard to the authorities and the evidence, and on viewing the packaging of the applicant and the respondent, no possible case for the infringement of the TPA or passing off could be substantiated. 30 The respondent submitted that, even if the Court were satisfied that there was a serious question to be tried, in the circumstances of the case, interlocutory injunctive relief should be refused. First, the respondent submitted that the applicant had been aware of its proposed packaging since August 2003 and, in any event, the applicant conceded that it had been aware of the packaging the subject of complaint from at least 20 January 2004. The applicant had, so the respondent's counsel contended, stood by and allowed the respondent to obtain substantial goodwill in its new packaging. Secondly, the respondent submitted that there was simply no evidence of confusion as a consequence of the respondent's packaging. Thirdly, there was no evidence that respondent's product was inferior to the applicant's product and that its continued sale would, as the applicant contended, damage the applicant's reputation. Damages were, so the respondent submitted, an adequate remedy, there being no evidence of irreparable harm. There was simply no evidence, so the respondent submitted, of any harm to the applicant's business by virtue of the respondent's continued sales of its sherbet product in its packaging under challenge. consideration 31 The first question is whether the applicant has established a serious question to be tried. This is not a very high threshold. At trial, the critical question is likely to be whether customers or potential customers were led, by the similarities in get-up between the applicant's and the respondent's packaging of their sherbet products, into believing that the respondent's "Get Fizzed" was the applicant's "Wizz Fizz" or a related product. If no deception is proved, then the question will be: was there a probability of deception? Compare Cadbury Schweppes at 859 and TPA s 52. The resemblance between the applicant's packaging and the first version of the respondent's packaging was very close indeed; and may ultimately support a finding of direct and deliberate copying. There is, however, the affidavit evidence of Mr Goldman to be borne in mind, and this indicates that there was no deliberate copying on his or the respondent's part. As matters presently stand, the authorities on the effect of direct and deliberate copying are of only limited assistance to the applicant. Further, as the evidence presently stands, there is no evidence that any member of the public was misled. I bear in mind that the test in passing off (and under s 52 of the TPA) is not whether a person who places the two products in their packaging side by side can see differences, and that Mr Ahmed's affidavit evidence is that the applicant's and the respondent's sherbet products are likely to be purchased without a great deal of consideration. I also have regard to Mr Klein's evidence that the primary consumers of these products have proven themselves to be discriminating and that there are numerous differences between the get-up of the two products. Whilst I express no concluded view, it seems to me, as a matter of overall impression, that the differences between the packaging of the applicant's and the respondent's sherbet products may well turn out to be significant. In any event, I accept the respondent's counsel's submission that there was no real evidence of what the applicant referred to as the "gestalt" of the products of the kind that proved significant in Red Bull. Further, I accept that, whilst the use of descriptive words like "fizz" creates a possibility of confusion in the minds of members of the public, this possibility is not enough to establish passing off or a breach of s 52 of the TPA. Accordingly, if the applicant has established a serious question to be tried, it has not established that, at this stage at least, it has a strong case: cf Bullock v Federated Furnishing Trades Society of Australasia (1985) 60 ALR 235 at 241 per Woodward J. 32 Bearing this in mind and the matters I am about to mention, I find that the applicant has not established that, even if it crossed the 'serious question to be tried' threshold, the balance of convenience entitles it to the grant of interlocutory injunctive relief. On the evidence before the Court, I am not satisfied that damages would not be an adequate remedy. There was no evidence that the continued sales of the respondent's sherbet product in its current packaging would adversely affect the applicant's reputation because the respondent's product was of an inferior quality, as the applicant claimed. There was, as the respondent submitted, simply no evidence of any irreparable harm to the applicant or anyone else and, indeed, little evidence of harm to the applicant's business generally. As already noted, there was no evidence that any member of the public had in fact been confused. The significance of the evidence about the possibility of confusion is unclear. I accept, as the respondent submitted, that the applicant has proceeded at a leisurely pace with respect to this application, bearing in mind that it has, as it concedes, known of the respondent's current packaging since January 2004. In the circumstances, and bearing in mind that the evidence, as it stands, does not disclose a strong case, I am not satisfied that the balance of convenience favours the grant of the interlocutory injunctive relief the applicant seeks. 33 For the reasons stated, I would dismiss the application upon the basis that the applicant pay the respondent's costs. I certify that the preceding thirty‑three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate: Dated: 9 September 2004 Counsel for the Applicant: Mr Galvin Solicitor for the Applicant: Harwood Andrews Counsel for the Respondent: Mr Goldblatt Solicitor for the Respondent: Ellis King McEwan Date of Hearing: 7 September 2004 Date of Judgment: 9 September 2004