Campomar Sociedad Ltd & Anor v NIke International Ltd

Campomar Sociedad Ltd and another party (the appellants) appealed to the High Court of Australia against a decision of the Full Federal Court which had affirmed a judgment of the Federal Court. The dispute concerned allegations of misleading and deceptive conduct under the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)). Nike International Ltd (the respondent) alleged that the appellants had engaged in conduct that was likely to mislead or deceive consumers into believing that the respondent was the source of certain perfume products sold under the name "J. del Olmo" and that there was an association between the respondent and these products.

The High Court was required to determine whether the conduct of the appellants in marketing and selling the "J. del Olmo" perfumes, which used packaging and a trade mark that bore a resemblance to the respondent's well-known "J. del Pozo" products, constituted misleading or deceptive conduct or conduct likely to mislead or deceive. Specifically, the court had to consider whether the overall impression created by the appellants' marketing was such that an ordinary or reasonable consumer of perfumes would be led to believe that the "J. del Olmo" products were either manufactured or endorsed by Nike International Ltd, or were otherwise connected to it.

The High Court, in a joint judgment, affirmed the findings of the courts below. Their Honours explained that the assessment of whether conduct is misleading or deceptive involves considering the likely effect of the conduct on the relevant class of consumers. The court emphasised that the question is not whether a particular consumer was actually deceived, but whether the conduct was *likely* to deceive. In this instance, the court found that the visual similarities between the packaging, the trade mark, and the overall presentation of the "J. del Olmo" perfumes and the respondent's "J. del Pozo" products were such that an ordinary consumer, when encountering the "J. del Olmo" products in the marketplace, would likely infer an association with Nike International Ltd, thereby creating a misleading impression. The court applied the principles established in cases concerning misleading and deceptive conduct, focusing on the overall impression conveyed to the consumer and the likelihood of deception.

The appeal was dismissed.