Gillette Australia Pty Ltd v Energizer Australia Pty Ltd

The case between Gillette Australia Pty Ltd and Energizer Australia Pty Ltd was heard before the High Court of Australia. The dispute centred around the advertising campaigns of both companies, particularly the use of a specific advertising slogan by Energizer. The Full Court had previously ruled in favour of Gillette, finding that Energizer had infringed on Gillette's trademark rights through the use of a slogan that was too similar to Gillette's well-known slogan.

The primary legal issue before the court was whether the Full Court had correctly determined that Energizer's use of the slogan constituted trademark infringement. Additionally, the court needed to consider whether the Full Court had properly assessed the damages awarded to Gillette and the apportionment of costs between the parties. The High Court was tasked with reviewing the legal principles applied by the Full Court and determining if any errors were made in the application of the law to the facts of the case.

In its judgment, the High Court held that the Full Court had correctly found that Energizer's use of the slogan constituted trademark infringement. The court affirmed that the similarity between the slogans was such that it was likely to deceive or cause confusion among consumers. Regarding the damages, the High Court found that the Full Court had applied an incorrect legal test, leading to an overestimation of the damages awarded to Gillette. The court also addressed the issue of costs, determining that the apportionment of costs between the parties should reflect the nature of the proceedings and the outcomes achieved. As a result, the High Court substituted the costs order to ensure a fair and equitable distribution of costs between the parties.

In summary, the High Court upheld the Full Court's decision on the infringement of trademark rights but corrected the legal test applied in determining the damages. The court also modified the costs order to ensure a more accurate reflection of the proceedings. The final orders included a revised costs apportionment, with specific costs related to certain advertisements to be borne by the appellant.