Coles Myer Ltd v Telmak Teleproducts (Australia) Pty Ltd

This matter came before the High Court of Australia on an application for special leave to appeal. The applicant, Coles Myer Ltd, sought to appeal a decision of the Full Court. The respondent, Telmak Teleproducts (Australia) Pty Ltd, was the plaintiff in the original proceedings. The dispute concerned allegations of passing off and contravention of section 52 of the *Trade Practices Act 1974* (Cth).

The central legal issue before the High Court was whether the Full Court had erred in its conclusion that Telmak had established a case of passing off and contravention of section 52, despite a finding by the trial judge, accepted by the majority of the Full Court, that Telmak had not established a relevant reputation in its get-up and descriptive words. Specifically, the applicant argued that the established principle requiring a plaintiff to demonstrate a misrepresentation and a relevant reputation was not properly applied by the majority.

The applicant contended that the majority of the Full Court had impermissibly drawn inferences from the fact that Coles Myer had deliberately adopted Telmak's descriptive words and lettering style. The applicant argued that these inferences were not supported by the evidence and that the majority had departed from the established requirement for a plaintiff to prove a reputation capable of being misappropriated. The applicant submitted that the majority's reasoning, particularly at page 93 of their judgment, demonstrated an error in concluding that a case could be made out without the necessary finding of reputation.

The High Court granted special leave to appeal.