Spanline Weatherstrong Building Systems Pty Ltd v Tabellz Pty Ltd [2013] FCA 1019

FEDERAL COURT OF AUSTRALIA

Spanline Weatherstrong Building Systems Pty Ltd v Tabellz Pty Ltd [2013] FCA 1019 Citation: Spanline Weatherstrong Building Systems Pty Ltd v Tabellz Pty Ltd [2013] FCA 1019

Parties: SPANLINE WEATHERSTRONG BUILDING SYSTEMS PTY LTD ACN 002 968 087 v TABELLZ PTY LTD ACN 095 855 833

File number: NSD 1206 of 2011

Judge: GRIFFITHS J

Date of judgment: 9 October 2013

Catchwords: TRADE PRACTICES – misleading or deceptive conduct – passing off – application of the principles in Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 and Peter Bodum A/S v DKSH Australia Pty Ltd (2011) 280 ALR 639 – whether secondary meaning established in the design of the applicant's product – whether persons in the relevant class able to distinguish between products in the marketplace – expectation of consumers acting reasonably in their own interests – effect of sticker identifying manufacturer – consideration of whether conduct of the respondent involved passing off their product as that of the applicant's product CONTRACT – breach of contract – franchise agreement – whether specific performance available as a remedy

Legislation: Australian Consumer Law (Sch 2 to the Competition and Consumer Act 2010 (Cth)) ss 18 and 29 Trade Practices Act 1974 (Cth)

Cases cited: Fletcher Challenge Ltd v Fletcher Challenge Pty Ltd (1981) 1 NSWLR 196 204 Hall v Busst (1960) 104 CLR 206 International Advisor Services Pty Ltd v XYYX Pty Ltd [2008] NSWSC 2 Legal & General Life of Australia Limited v A Hudson Pty Limited (1985) 1 NSWLR 314 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 Peter Bodum A/S v DKSH Australia Pty Ltd (2011) 280 ALR 639 The Amble Inn Pty Ltd v Ryan [2001] NSWSC 875