Frucor Beverages Ltd v Pepsico Inc

Frucor Beverages Ltd (Frucor) sought interlocutory injunctive relief against Pepsico Inc (Pepsico) and its related entities, alleging that Pepsico's proposed marketing campaign for its "Mountain Dew" beverage infringed Frucor's registered trade mark "Mountain Dew" and its associated goodwill. The dispute concerned the use of the "Mountain Dew" name and associated branding in Australia.

The primary legal issue before the court was whether Pepsico's proposed use of the "Mountain Dew" name and branding in Australia would be likely to cause confusion or deception among consumers, thereby infringing Frucor's registered trade mark rights under the *Trade Marks Act 1995* (Cth). This involved assessing the similarity between the marks, the goods or services in respect of which the marks were used, and the likelihood of the relevant public being deceived or confused as to the origin of the goods.

Justice Alison Windsor considered the evidence presented by both parties regarding the distinctiveness of the "Mountain Dew" trade mark, the nature of the respective products, and the proposed marketing strategies. Her Honour applied the well-established principles for determining trade mark infringement, focusing on the likelihood of deception or confusion in the marketplace. The court examined the visual and aural similarities between the marks, as well as the potential for consumers to associate Pepsico's "Mountain Dew" with Frucor's existing product, given the shared name and the nature of the beverages. The court also considered the strength of Frucor's mark and the potential damage to its goodwill.

The court ultimately granted the interlocutory injunction, finding that Frucor had established a serious question to be tried regarding trade mark infringement and that the balance of convenience favoured granting the injunction to preserve the status quo pending a full trial.