New South Wales Dairy Corporation v Murray Goulburn Co-operative Co Ltd [1990] HCA 60

High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. New South Wales Dairy Corporation v Murray Goulburn Co-operative Co Ltd [1990] HCA 60

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 20 Mason C.J.

The appellant is a statutory authority created by the Dairy Industry Act 1979 NSW. As it is the successor in name and title to the Dairy Industry Authority of New South Wales and the Dairy Industry Marketing Authority, it will be convenient hereafter to use the expression "the appellant" to refer not only to the present appellant but also to its two predecessors in name and title. The appellant is responsible for the regulation and control of production, supply and distribution of milk in New South Wales, as well as for the fixing of prices for milk and other dairy products.

The respondent is a Victorian corporation with approximately 25,000 shareholders who reside predominantly in rural areas. It is one of the largest farm co-operatives in Australia. It manufactures and supplies a large number of dairy products, including milk, receiving supplies of milk from Victoria and southern New South Wales.

The appellant is the registered proprietor under the Trade Marks Act 1955 Cth ("the Act") of the trade mark consisting of the word Moove, which was registered with effect from 1 November 1978 in respect of all goods in Class 29. Those goods include milk and other dairy products. In January 1979, the appellant launched a flavoured milk product under the name Moove. Since then, Moove flavoured milk has been extensively promoted and sold in New South Wales and the Australian Capital Territory. There have also been substantial sales elsewhere in Australia. The product is available in several flavours and is distributed both in the form of fresh milk and long life (U.H.T.) milk. The fresh milk is packaged in 300 ml. and 600 ml. gable-topped cartons and in labelled 2 litre plastic bottles. The U.H.T. milk is sold in 250 ml. brick-shaped Tetrapaks. In each case the colouring on the packaging or labels is two tonal, depending upon the particular flavour of the milk, and the word Moove is printed within a slightly curved block reflecting a theme of activity. The U.H.T. product accounts for between 2 per cent and 4½ per cent of total Moove sales. The advertising of Moove is targeted primarily to encourage purchases by people aged between thirteen and seventeen, with secondary target groups of children in their immediate pre-teen years and people aged between seventeen and twenty-five.