Coca-Cola Company v PepsiCo Inc (No 2) [2014] FCA 1287

FEDERAL COURT OF AUSTRALIA

Coca-Cola Company v PepsiCo Inc (No 2) [2014] FCA 1287 Citation: Coca-Cola Company v PepsiCo Inc (No 2) [2014] FCA 1287

Parties: THE COCA‑COLA COMPANY v PEPSICO INC, PEPSICO AUSTRALIA HOLDINGS PTY LIMITED ACN 079 719 743 and SCHWEPPES AUSTRALIA PTY LTD ACN 004 243 994

File number: VID 876 of 2010

Judge: BESANKO J

Date of judgment: 28 November 2014

Catchwords: CONSUMER LAW – misleading or deceptive conduct, or conduct likely to mislead or deceive – whether sale of respondents' glass cola bottle misleading or deceptive, or likely to mislead or deceive – meaning of "likely to mislead or deceive" – how test differs to claim for passing off – Competition and Consumer Act 2010 (Cth) Sch 2, ss 52 and 53. TORT – passing off – whether sale of respondents' glass cola bottle amounted to passing off – relevant date for determining applicant's reputation where respondents' impugned products removed from and later reintroduced into the marketplace – whether applicant's had established reputation in shape, or outline or silhouette, of its glass cola bottle at the relevant date – whether consumers would make purchasing decision based on shape, or outline or silhouette, of glass cola bottle – whether respondents' made representations to consumers through sales of its glass cola bottle that respondents' business is associated with applicant's business. TRADE MARKS – shape marks – use as a trade mark – whether respondents using shape of their glass cola bottle, or outline or silhouette of glass cola bottle, as an indicator of trade origin – whether consumers educated to view shape of bottles of non-alcoholic beverages as indicator of trade origin generally – relevance of respondents' intention in designing glass cola bottle to whether shape being used as indicator of trade origin – relevance of context of sale – where respondents also using word and device marks on glass cola bottle – deceptive similarity – whether signs used by respondents deceptively similar to applicant's registered trade marks – alleged infringement of two dimensional marks by three dimensional objects – whether outline or silhouette of registered marks an essential feature or the dominant feature or the main idea of the marks – whether the outline or silhouette of the respondents' glass cola bottle the "overall impression" given to consumers – relevance of respondents' intention in designing glass cola bottle to deceptive similarity – Trade Marks Act 1995 (Cth) s 120. Held: Application dismissed.