Campbell Soup Company v Heinz Company Australia Limited

Campbell Soup Company Pty Ltd (Campbell's) and Heinz Company Australia Limited (Heinz) were parties to a dispute concerning the alleged infringement of Campbell's registered trade mark 'Campbell's Real Stock' and associated get-up. Campbell's sought interlocutory relief to restrain Heinz from using the mark 'Heinz Real Stock' and a similar get-up for its own stock products. The matter came before Justice Heath Wilson of the Federal Court of Australia.

The primary legal issues before the Court were whether Heinz's use of the 'Heinz Real Stock' mark and get-up constituted an infringement of Campbell's registered trade mark under section 120 of the *Trade Marks Act 1995* (Cth), and whether Heinz's conduct was likely to mislead or deceive consumers as to the origin of its products, thereby contravening section 18 of the *Australian Consumer Law* (Schedule 2 to the *Competition and Consumer Act 2010* (Cth)). Campbell's also sought to establish that Heinz's actions were likely to cause confusion and damage to its business.

Justice Wilson considered the evidence presented by both parties, including market research and consumer surveys, to assess the likelihood of confusion. The Court applied the principles of trade mark infringement, focusing on whether the marks were substantially identical or deceptively similar, and the test for misleading or deceptive conduct under the Australian Consumer Law, which requires an assessment of the likely effect on the ordinary and reasonable consumer. The Court found that while there were similarities in the get-up, the distinctiveness of the 'Campbell's' brand name and the differences in the overall presentation of the products were significant enough to mitigate the risk of confusion.

Ultimately, Justice Wilson dismissed Campbell's application for interlocutory relief, finding that Campbell's had not established a sufficient likelihood of success on the merits to justify the grant of an injunction at this interlocutory stage. The Court ordered that Campbell's application be dismissed.