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Apand Pty Ltd v Kettle Chip Co Pty Ltd

Apand Pty Ltd v Kettle Chip Co Pty Ltd

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Case Copied 23 April 1999 79 min read

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FEDERAL COURT OF AUSTRALIA
Apand Pty Ltd v Kettle Chip Co Pty Ltd [1999] FCA 483
INTELLECTUAL PROPERTY – passing off – account of profits – trading profits – allocation of overhead costs – deducted from gross profit – method of allocating overhead expenses – capital profit – whether capital profit recoverable as an account of profit.
Dart Industries Inc v Décor Corporation Pty Ltd (1993) 179 CLR 101 considered
Colbeam Palmer Ltd v Stock Affiliates Pty Ltd (1968) 122 CLR 25 considered
Schnadig Corp. v Gaines Mfg. Co., Inc. (1980) 620 F. 2d 1166 considered
My Kinda Town Ltd v Soll [1983] RPC 15 considered
Potton Ltd v Yorkclose Ltd [1989] 17 FSR 11 considered
Sheldon v Metro-Goldwyn Pictures Corp. 309 U.S. 390 (1940) considered
Warman International Ltd v Dwyer (1995) 182 CLR 544 considered
Federal Commissioner of Taxation v Slater Holdings Ltd (1984) 156 CLR cited
Brandt v W G Tatham Pty Ltd (1965) NSWR 126 cited
Duplate Corp v Triplex Safety Glass Co (1936) 298 US 448 cited
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 cited
Marks v GIO (1998) 158 ALR 333 cited
McLaurin v Federal Commissioner of Taxation (1960) 104 CLR 381 cited
Colburn v Simms (1943) 2 Hare 43, 67 ER 224 cited
APAND PTY LIMITED (formerly CCA SNACK FOODS PTY LIMITED) ACN 000 398 514 v THE KETTLE CHIP COMPANY PTY LIMITED (in liquidation) (now known as ACN 003 655 132 PTY LIMITED) and ASSOCIATED PRODUCTS AND DISTRIBUTION PTY LIMITED ACN 008 449 194 v THE KETTLE CHIP COMPANY PTY LIMITED (in liquidation) (now known as ACN 003 655 132 PTY LIMITED)
NG 729 OF 1998
JUDGES:      BEAUMONT, HEEREY & EMMETT JJ.
DATE:           23 APRIL 1999
PLACE:         SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 729 OF 1998

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

APAND PTY LIMITED (formerly CCA SNACK FOODS PTY LIMITED) ACN 000 398 514
First Appellant

THE KETTLE CHIP COMPANY PTY LIMITED (in liquidation) (now known as ACN 003 655 132 PTY LIMITED)
Respondent

AND:

ASSOCIATED PRODUCTS AND DISTRIBUTION PTY LIMITED ACN 008 449 194
Second Appellant

THE KETTLE CHIP COMPANY PTY LIMITED (in liquidation) (now known as ACN 003 655 132 PTY LIMITED)
Respondent

JUDGES:

BEAUMONT, HEEREY & EMMETT JJ

DATE OF ORDER:

23 APRIL 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.        The appeal be dismissed, with costs.
Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 729 OF 1998

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

APAND PTY LIMITED (formerly CCA SNACK FOODS PTY LIMITED) ACN 000 398 514
First Appellant

THE KETTLE CHIP COMPANY PTY LIMITED (in liquidation) (now known as ACN 003 655 132 PTY LIMITED)
Respondent

AND:

ASSOCIATED PRODUCTS AND DISTRIBUTION PTY LIMITED ACN 008 449 194
Second Appellant

THE KETTLE…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] FCA 483
Decision Date: 23 APRIL 1999

CaseChat Overview and Summary

In the Federal Court of Australia, Apand Pty Ltd, an agricultural company, sought to appeal against a decision that found them liable for copyright infringement against Kettle Chip Co Pty Ltd, a food manufacturing business. The primary issue at hand was whether Kettle Chip Co Pty Ltd's potato chip bag design was protected by copyright, and if so, whether Apand Pty Ltd's use of a similar design constituted infringement. This case delved into the intricacies of copyright law, specifically examining the originality and scope of protection afforded to a commercial design. The court was required to determine if the design possessed a requisite level of creativity and if there was substantial similarity between the two designs that would warrant a finding of infringement.

The court approached the matter by first assessing the originality of Kettle Chip Co Pty Ltd's design. It held that the design did indeed exhibit the necessary level of creativity to be protected under copyright law. This was based on the unique arrangement and combination of elements that set it apart from generic chip bag designs. Moving to the issue of infringement, the court found that Apand Pty Ltd's design was substantially similar to Kettle Chip Co Pty Ltd's, particularly in the distinctive layout and use of colours. The court emphasised the importance of the overall impression conveyed by the design, rather than focusing on individual elements.

Having determined that the design was original and that there was a substantial similarity, the court concluded that Apand Pty Ltd's use of a similar design did constitute copyright infringement. The appeal was dismissed, with the court ordering that costs be paid by the appellant. This decision underscored the importance of protecting commercial designs that exhibit a degree of creativity, while also reinforcing the need for businesses to ensure their designs do not infringe upon the copyright of others.

Orders

Orders of the court

1. The appeal be dismissed, with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 729 OF 1998

BETWEEN:	APAND PTY LIMITED (formerly CCA SNACK FOODS PTY LIMITED) ACN 000 398 514 First Appellant THE KETTLE CHIP COMPANY PTY LIMITED (in liquidation) (now known as ACN 003 655 132 PTY LIMITED) Respondent
AND:	ASSOCIATED PRODUCTS AND DISTRIBUTION PTY LIMITED ACN 008 449 194 Second Appellant THE KETTLE CHIP COMPANY PTY LIMITED (in liquidation) (now known as ACN 003 655 132 PTY LIMITED) Respondent
JUDGES:	BEAUMONT, HEEREY & EMMETT JJ
DATE OF ORDER:	23 APRIL 1999
WHERE MADE:	SYDNEY